By Howard Hills
Spain Reclaims Catalonia
On October 21 Spain’s national government moved to rescind the powers of leaders in Catalonia’s regional government. This was the stunning consequence of an October 1 referendum declared unlawful by the Constitutional Court of Spain, followed by a declaration of independence from Spain signed by the President of Catalonia.
The national government in Madrid has directed new elections to reconstitute the local government in conformity with national law. Spain’s Prime Minster reportedly acted with support from the opposition party in Spain’s Parliament.
Meanwhile, the leader of the PDeCAT party controlled by the Catalan separatist faction continues to hold himself out as President of the Catalonian government. As the leader of the nationalist faction in the Catalonia regional capital of Barcelona, he has called for negotiations to resolve the political status of the region.
Sentiment in Spain and across the European Union is that the central government in Madrid now faces the worst constitutional crisis since the death of Spain’s dictator Francisco Franco in 1975. Under the Franco regime Catalonian separatism was overtly suppressed, and as political restitution the 1978 constitution restoring democratic national government recognized Catalonian autonomy.
If the Catalan nationalist party faction now resists national rule politically, and Madrid imposes the national will to restore Spanish law, that could trigger a legal and constitutional confrontation. If Catalonia were to assert de facto national independence and seek international recognition, would the large loyal Spanish nationalist and anti-independence factions in Catalonia more robustly mobilize political support for the central government in Madrid?
The politics driving Catalan pro-independence sentiment include a desire for regional prosperity to thrive under regional government, without diversion of local wealth to other regions through the central government. If that leads to separation of Catalonia from Spain, would people and businesses leave the region? Would the European Union and United Nations recognize Catalonia’s independence without Spain’s agreement?
What would be the impact on other EU nations if regional separatism were allowed for Catalonia? Before finding out, would Spain seek and would the EU impose sanctions to prevent Catalonian secession?
Catalonia-Puerto Rico Paradox
As the aspirations of the Catalan separatists collide with the realities of Spanish national sovereignty, the similarities and differences between the political status impasse in Catalonia and Puerto Rico’s quest for democratization call for contrast and comparison. The most conspicuous difference is that unlike Catalonia the autonomous but not fully democratic or sovereign territory of Puerto Rico has never realized its potential for prosperity.
For Puerto Rico, political autonomy subject to supremacy of federal law has fostered dependency rather than prosperity. While Catalonia’s prosperity fuels the drive to separate nationality, by majority rule Puerto Rico is seeking full participation in the U.S. national economy on an equal political footing with the states of the union through admission as a new state in its own right.
Devastating hurricanes have made federal and local government commitment to rebuild Puerto Rico imperative, on a scale that will be unprecedented for any American territory. It must not be forgotten, however, that before the storms came local government insolvency precipitated a political and economic crisis disrupting the civic order under federal territorial law and policy in Puerto Rico.
In addition, just as Spain’s courts and national government have suspended the autonomous powers previously delegated to Catalonia, in 2016 the U.S. Supreme Court finally confirmed and joined in long-standing Congressional and White House rejection of Puerto Rico’s claims of vested sovereign autonomy. At the same time the federal government in Washington imposed a federal fiscal and economic control board (aka PROMESA), with superseding if not supreme power over the local civil government created by Congress under a territorial constitution in 1952.
So both Spain and the U.S. have adopted measures re-asserting national sovereignty over political subdivisions that off and on have been under control of local autonomist political party factions. In both cases, when in power locally, separatists were asserting increasingly aggressive doctrines of emergent nationalism euphemistically referred to as “autonomy.”
The current popular democratic response in Catalonia is to seek separate political and economic status. In contrast, the current majority popular response in Puerto Rico has turned away from political and economic separatism that has failed to secure full political and economic integration into U.S. national markets.
In the case of both Catalonia and Puerto Rico, the outside world may see the recent measures toward restoration of national rule of law as sudden and unprecedented central government intervention in local democratic home rule and autonomy. The final outcomes may be similar or different, but in both cases political status is the ultimate issue.
For historians, this day of reckoning not only has been expected, it’s been a long time coming. For decades Catalonia and Puerto Rico have asserted a right to vested sovereignty to enhance separate nationalism.
The arcane idiosyncratic ideological and quasi-legal pretexts for the ever more strident claims of “bilateral sovereignty” by Catalonia and Puerto Rico have sociopolitical roots both similar to and different from their respective civic histories.
Tale of Two Territories
In both Catalonia and Puerto Rico the autonomists are a political party faction representing a large plurality but not necessarily a sustainable majority among the general population. In Catalonia loyal Spanish nationalists just about evenly match the separatist party faction in popular political support.
In Puerto Rico the autonomists alternate in and out of power in a revolving door political contest with the current majority supporting future admission of the island territory as the 51st state of the union. As in Catalonia, locally conducted referendums in Puerto Rico are controversial whether the autonomist or statehood party is in power, but the pro-statehood factions have become a decisive majority.
The real “news” in the Catalonia-Puerto Rico narrative is historical. That’s because the high stakes jousting between national government sovereignty and local separatists in Spain’s modern era rule over Catalonia dates back in the case of Puerto Rico to the era of Spain’s colonial rule in the Americas.
Decades before Spain adopted its 1932 “Statute of Autonomy” for Catalonia, the Spanish throne in Madrid granted in 1897 a “Charter of Autonomy” to its Caribbean colony at Puerto Rico. In Puerto Rico “autonomy” was a device to appease the King’s unruly subjects, after widespread anti-colonial unrest had to be quelled by Madrid’s military garrison in the distant capital of San Juan.
Spain’s diplomacy aimed at restoring order in colonial island outposts by offering greater “autonomy” ended along with what little remained of its once vast empire in the Americas. That abrupt and humiliating end of Spanish imperial ambitions in Puerto Rico came soon after outbreak of the Spanish American War. Spain ceded Puerto Rico to the U.S. under the treaty ending the war, and its islands were annexed as an American territory in 1899.
Congress granted U.S. citizenship in 1917 and told the U.N. in 1952 that Puerto Rico was no longer a colony because a local territorial constitution had been approved in the territory and by federal law. Yet, in 2017 the U.S citizens of Puerto Rico still have embarrassingly limited political and civil rights, and are governed today under the same neo-colonial 1901 court rulings that applied before national citizenship was granted.
Ironically, however, Spain’s failed experiment offering autonomy in lieu of independence to Puerto Rico was replicated for Catalonia in 1932. In Spain the autonomous status for Catalonia was elevated by reclassification as a form of “nationality” under the 1978 constitution. But when revived in Puerto Rico’s modern era the dormant legacy of Spain’s 1897 autonomy charter led island separatists into a political status dead end.
That’s because a new generation of self-styled autonomists came to power in Puerto Rico after WWII. Just as autonomists in Catalonia gained politically as the region prospered for reasons that had little or nothing to do with autonomy, Puerto Rico’s autonomists gained politically by taking credit for benefits of New Deal economic inputs linked to the territory’s strategic value during the war.
In Puerto Rico the autonomists then shrewdly adopted an appealingly retouched version of the 1897 Puerto Rico and 1932 Catalonia autonomy models. Twisting legal terminology from America’s anti-colonial blueprint for admission of new states under the fabled Northwest Ordinance, the separatists from San Juan convinced Washington that delegation of greater powers to a more autonomous Puerto Rico would reduce federal burdens of territorial governance.
That alone might not have been enough to convince Congress to treat Puerto Rico different than other U.S. citizen populated territories. So the Puerto Rico autonomists promised delegation of powers to San Juan would mean there was no immediate need at the federal or local level to make the difficult and messy choice between statehood or independence.
The historical irony is that Spanish loyalists in Puerto Rico had embraced Spain’s autonomy offer and betrayed the anti-colonial insurgency in 1897. The Puerto Rico collaborators with Madrid’s imperial reign were rewarded with high office as overseers of the colonial regime.
Once again in 1950 the Puerto Rico autonomists cleverly persuaded the U.S. Congress to embrace the modern Spanish autonomy model that enabled Madrid to avert a showdown over national rule of independence in Catalonia in 1932. But the Puerto Rico autonomists were clever to a fault, because it did not go unnoticed in Washington that the Catalonian autonomy model was less than met the eye in terms of actual local sovereignty.
Snapping up “autonomy” in form but not substance, in 1952 federal territorial policy makers readily agreed with Puerto Rico’s separatist leaders to enhance the brand by labeling the new federally authorized territorial constitution a “compact of association.” The hoax that real sovereignty had been transferred and was vested in the local regime included conferral of the legally meaningless but high sounding name “commonwealth.”
At the time, Washington had just delivered in 1946 on a 1916 promise of independence for the U.S. territory of the Philippine Islands. Although delayed by economic and social questions as well as partisan politics in Congress, it would be just a few short years later that the territories of Hawaii and Alaska became states.
Instead of deciding Puerto Rico’s future status and managing federal-territorial relations to bring about that political status, the U.S. and the autonomist faction in the territory used the same ploy Spain had in 1932 with Catalonia. So the U.S. promised “autonomy” to avoid the difficult choice between statehood and independence.
So it was that Congress deferred making any investment of political or economic capital in the federal treasury to ready Puerto Rico for a permanent constitutionally defined status as a nation or state of the union. Instead the Washington power brokers decided to leave our nation’s last large and populous territory twisting in the wind.
That is why the Philippines is a sovereign nation and Hawaii as well as Alaska are successful states, but Puerto Rico remains today in an indefinite state of political status limbo. In important respects Puerto Rico is in the same status dilemma as the tiny federal reservation territories of Guam, U.S. Virgin, Mariana Islands and American Samoa.
Like Catalonia, in a broader historical context it’s clear Puerto Rico is then a case study in false promises of the Spanish model of autonomy adopted by Spain in 1932.
Failure of Sovereignty
It is more than a timely coincidence that the “commonwealth” party in Puerto Rico has failed to deliver on its promise of enhanced sovereignty as a feature of so-called “autonomy” from Washington. As with regions of Spain that have been promised a “national reality” through autonomy from the central government, the small U.S. territories wonder if the train has left the station.
Will Puerto Rico become a state of the union or independent? What does it matter, if both options are beyond reach of those territorial micro-regimes?
Results have been mixed at best with regard to attempts by Madrid in the modern era to accommodate autonomist movements in Catalonia and other regions, without destabilization of the national social order and central government rule. Meanwhile, in Puerto Rico the autonomist party’s narrative has had a decidedly anti-democratic impact and high cost in human terms.
The failed ideological doctrines of autonomists have distracted the people of Puerto Rico from real political empowerment and political rights within reach through a democratic choice between statehood and independence. This has perpetuated developmental arrest and dependency under an anti-democratic federally instituted territorial status for 65 years.
Puerto Rico’s future status should have been decided in the same decade Congress resolved the status of the Philippines, Hawaii and Alaska.
It bears emphasis that during more than a half century of social, economic and political stagnation under the commonwealth regime, a U.S. state or a sovereign republic of Puerto Rico could have developed and prospered. A fully democratic status strengthening self-government would have enabled Puerto Rico to attain private sector growth and public sector capacity to prevent or better manage recent man made crises and natural disasters.
The lack of capacity for full political and economic development disabled Puerto Rico in mitigating the loss of federal tax preference investment incentives that were repealed after subsidizing the local economy for decades. Similarly, with no voting representation in Congress or the Electoral College, millions of U.S. citizens in the territory had no one with a politically credible voice sitting at the table when the decision was made to shut down of all major U.S. military bases.
Base closures eliminated $400 million annually and 6,000 jobs from the local economy. Even worse, without military assets and capabilities on island that help during emergencies in states, federal and local government negligence toward the known obsolesce of infrastructure left the island vulnerable to even greater suffering from a natural disaster like Hurricane Maria.
History Revised But Not Changed
Since the advent of the 1952 territorial constitution, the autonomist faction in Puerto Rico has touted the 1897 “Charter of Autonomy” that Spain granted to appease anti-colonial factions in its Caribbean colony. The autonomists argue that the Spanish nation-within-a-nation model was an opportunity for national development denied by the advent of U.S. rule.
This revisionism romanticizes the 1897 autonomy gimmick as a legacy of Iberian culture and Spanish rule to be redeemed now under U.S. rule and the territorial “commonwealth” regime. This obviously bogus and self-serving autonomist argument ignores the reality that “commonwealth” is not constitutional autonomy much less vested sovereignty.
Rather, “commonwealth” is a federal statutory territorial policy allowing local civil administration created on obsolete terms prescribed by the U.S. Congress in 1950. Yet, the autonomy of the Catalonia and Basque regions of Spain in modern times also has been cited in Puerto Rico as an enlightened Spanish autonomist legacy and model for “bilateral sovereignty.”
That model of so-called “sovereign nationalist autonomy” purportedly can be attained by Puerto Rico through invented “associated state” status rather than statehood or independence. Again, this is propaganda indoctrinating separatist faction followers in Puerto Rico to the false promises of the autonomist faction party junta.
In reality the autonomist party faction has sabotaged full decolonization that is within reach for Puerto Rico through informed democratic self-determination on the real options of statehood in the U.S. federal union, or truly sovereign nationhood with or without a treaty of “free association” as defined by U.S. and international law.
As discussed at length below, the autonomist Popular Democratic Party (PDP) is already discredited and disgraced by the political and economic collapse of the “commonwealth” regime it defended for 65 years in Puerto Rico. The false PDP promise of “sovereignty” without statehood or independence is grounded in the Spanish legacy of “autonomy” as a substitute for real sovereignty.
The entire “commonwealth” narrative must now be understood in light of the failure of “autonomy” to define a status of independence within an existing nation for Puerto Rico and Catalonia.
Separatism and National Sovereignty
What is there in common about failed promises of sovereignty by the autonomist “commonwealth” party in territorial Puerto Rico, and failed separatist promises that Catalonia’s “national reality” offers sovereignty independent of Spain?
Both of these separatist movements are examples of factions within a political subdivision of an existing nation seeking to seize national sovereignty from a central government. Whether pursued in the name of autonomy or bilateralism (nation-to-nation relations) between “associated states,” separatist factions challenge national constitutional sovereignty and seek recognition of a nation-within-a-nation sovereign status.
Even with populist support in political subdivisions controlled by factions with nationalist aspirations, separatist movements lack legitimacy without access to a duly-constituted and legally recognized process of democratic self-determination to define a new fully sovereign and independent national status. A local vote favoring separate national sovereignty can be ignored if not authorized by applicable national law.
Similarly, even if democratically attained, separatist control of an internal political subdivision governing regime must be exercised in conformity with applicable national laws. Otherwise, actions asserting separate sovereignty may constitute breach legal duties and usurpation of constitutional powers of a national government.
Unless a right to separate nationality is enabled through the existing constitutional order, political subdivisions are not vested with inherent power by unilateral action to establish separate nation-state sovereignty within a previously existing nation.
This was recognized when the international community turned to the U.S. Declaration of Independence and the principle of government by consent to establish universal principles for decolonization and democratization through self-determination under the U.N. Charter. As a result U.N. self-determination standards recognize that sovereign means sovereign, and informed democratic consent means just that.
So adoption of a national constitution by consent of the governed requires that any to change the political status of the people and the nation must be accomplished in accordance with national law. For example, “free association” status is recognized by the U.N. as an intermediate alternative to integration in an existing nation or full national independence.
To be duly constituted as a free associated nation-state both governments in the bilateral relationship must retain a full sovereign right to end the association in favor of independence. But in order to exercise that right each government must act through and in accordance with its own constitutional process for consent of the governed.
That is the matrix for historic nation-state models, national federalism and self-determination under applicable international and national constitutional processes. It is in that context separatism, anti-federalism and sovereign bilateralism movements within existing nations must be understood.
A claimed “national reality” does not ensure a political subdivision in an existing nation can attain a sovereign bilateral status, especially without first attaining national independence through a recognized constitutional process.
Puerto Rico Separatism
In Puerto Rico, the autonomy movement that began under Spanish colonial rule was revived under American rule in the mid-20th century. The purpose was to promote and seek sovereign bilateralism under federal and territorial statutory law.
The goal of the autonomist Popular Democratic Party (PDP) was to gain and hold political power by combining limited rights of U.S. citizenship and other features of territorial status with limited rights of sovereign-like self-government. The PDP junta’s manifesto promised Puerto Rico would remain a “nation” culturally and ideologically, and retain the limited but beneficial U.S. citizenship Congress extended to the territory by statute.
The PDP promoted a narrative of dual allegiance to two countries, as if a bilateral confederation. It was called a “best of both worlds” regime, and given the label “commonwealth” in English. In Spanish the “commonwealth” name was translated as “associated nation-state.”
The autonomists promoted “commonwealth” as a form of gradually culminating separatism under federal and local territorial statutes, evolving into de facto “nationality” with capacity for permanent constitutional bilateralism. The PDP promised to protect the Spanish language and cultural heritage of the Spanish colonial era, in order to resist undue U.S. influence leading to “evils” like assimilation.
While reassuringly embracing the advantages of U.S. citizenship, the PDP opposed future statehood and intensified indoctrination in ideological theories of autonomist bilateralism in all sectors of civil society. That included public schools where use of English was ended whenever the PDP was in power under the “commonwealth” regime of territorial government created by Congress.
For decades the PDP promise of a Puerto Rico “national reality” through autonomy successfully competed with the increasingly popular statehood party faction for public support and political power. The autonomists promised “commonwealth” would “culminate” in virtual nationhood with features of statehood in a “free associated nation-state” status.
Congress never agreed to that interpretation of “commonwealth,” and early progress under its ambiguous federal and local enabling statutes proved politically and economically unsustainable. The repeal of federal tax shelter schemes that autonomists called a “pillar of commonwealth” revealed that whatever was given by Congress under federal territorial statutes could be taken away by Congress.
After autonomists insisted Congress could not take away federal “corporate welfare” tax shelters not justified by benefits to the local economy, it was only a matter of time before Congress would repeal those federal tax sparing schemes subsidizing and propping up the “commonwealth” regime.
Inevitably, the populist appeal of the autonomist movement was insufficient to produce majority support for the “commonwealth” regime. While independence support peaked at 5%, in local voting popular support for statehood reached 61% in 2012 and 97% in 2017.
By then the U.S. Supreme Court finally had ended all ambiguity and declared “commonwealth” a non-sovereign regime, existing only at the pleasure of Congress in the exercise of its power over territory under U.S. sovereignty but not in a state of the union. Having finally also borrowed far beyond its means to prop up the illusion that the PDP’s separatist agenda was economically viable, the “commonwealth” regime went bankrupt in 2016.
In 2017 the U.S. Congress seemed “suddenly” to recognize the “commonwealth” regime had too much autonomy and too little fiscal accountability, leading to $125 billion in unfunded obligations. Faced with a local regime creating spiraling federal liabilities, without any apologies to the PDP’s autonomist junta Congress summarily suspended local self-government in favor of a federal control board takeover.
As the federal control board named PROMESA was still wringing its hands trying to solve the austerity versus stimulus riddle, hurricane Maria devastated the political economy of Puerto Rico. Now the Congress must decide whether to rebuild the island based on the normative model of statehood or nationhood.
The alternative of once again ruling Puerto Rico indefinitely as a territory is manifestly wrong. It actually invites repetition of a history in which the people have been induced to forego rights attainable through statehood or nationhood, while beguiled by PDP false promises of rights to bilateral autonomy that do not exist in real world.
On October 11 an open letter opposing the tactics and goals of intensified Catalonian nationalism was signed by prominent leaders of political, academic, scientific, cultural, business and economic thought in Spain. The signatories included Nobel Prize recipients and Spanish members of the European Parliament.
The population of Catalonia is evenly divided between citizens whose first choice in language and national identity is Spanish, and separatists in that region whose language and national identity of first choice is Catalan. The separatists had gained control of the ruling regime in the regional capital of Barcelona, and rose to test Spain’s resolve to impose central government power.
A day before the open letter opposing Catalan separatism was issued, the leader of the PDeCAT separatist party faction currently in control of the Catalonia regional government signed a declaration of independence. Under Spanish national law this was an ineffective but provocative act, since the Constitutional Court of Spain had in essence been joined by the King of Spain in declaring a recent referendum on nation-state status invalid.
The open letter calling for the Catalan separatist regime to recede from its assertion of a secessionist doctrine predicted the Prime Minister’s pronouncement of Spanish national resolve to hold the Catalan separatists accountable to the rule of law.
Spain’s central government exercise of national federal power based on democratic principles and rule of law bears by analogy some similarities to the conflict of national federalism and regional separatism in the American south before the Civil War. It also draws parallels to the rise and fall of pseudo-nationalist autonomist separatism in Puerto Rico’s “commonwealth” era.
As noted above, the same political devices offering autonomy that Spain used in 1897 to quell pro-independence separatism and nationalism in Puerto Rico also was employed by Spain in Catalonia since 1932. Just as the Spanish colonial regime in San Juan was granted a “Charter of Autonomy?” by Madrid, Barcelona and Madrid still cite the “Statute of Autonomy” that recognizes Catalonia as a “nationality” in name but not as a vested sovereign status.
The attempt to stave off regional independence with an autonomy deal with Puerto Rico in 1897 was overtaken by American annexation and autonomist schemes and machinations. Now, as the U.S. Congress faces the high price of its misguided appeasement of Puerto Rico autonomists, under Spain’s modern constitution Madrid must decide whether it can or should try to accommodate Catalonian nationalism further.
In one sense Spain was faced on October 10 with a choice between restoring national federal power or ceding sovereignty and relinquishing supremacy of national law. Spain already adapted its constitutional federalism in a way that has allowed Catalonia to practice creeping de facto bilateralism.
The same exercise in form over substance has been underway in similarly autonomous internal “nations” like the Basque region. Can stability under national sovereignty be restored and sustained, or is seized bilateral sovereignty like the cat already out of the bag?
The open letter of October 11 notes Catalonia separatists do not want to share its prosperity with the Spanish nation. The pronouncements in the letter anticipate that if the region persists the business sector that sustains its prosperity may well relocate to more stable venues in Spain.
The same may be true of the Spanish loyalist population. This is more likely since the Catalans have singled out loyalist judges in the Spanish judicial system that rejected the referendum results, and targeted the courts for a purge, creating valid concern about a possible breakdown in the rule of law.
Spain must now decide whether political populism supporting separatism and sovereign bilateralism should be treated as self-determination and withdrawal of consent of the governed to national federalism and constitutional rule. Spain’s central national federalism, so to speak, is being tested.
The question is whether the Spanish Parliament will require that change in status be achieved in accordance with rather than defiance of the Spanish constitution. Only Spain and its autonomous regions with a “national reality” recognized by Madrid can decide what is just and most likely to bring peace.
If the regional government is able to wrest control of the territory and population from Spain with the signature of a declaration, populism may prevail over rigid constitutional federalism. If that is so Catalonia may already be a de facto separate nation in the full political if not legal sense.
A Twin “Sovereignty” Hoax
The legacy of the Spanish Civil War, the Franco era, and Spanish colonialism in the Americas make Catalonia’s separatist challenge complicated for Spain. The question is whether the 1897, 1932 and 1978 offers of “autonomy” created any vested right of sovereign nationality in Puerto Rico, Catalonia or any other region of Spain seeking a “national reality.”
In the same way Puerto Rico’s status dilemma is testing the U.S. system of constitutional federalism in the last large federally owned territory not in a state of the union. The autonomists in the PDP even promoted the idea of a local veto over federal law, as if that might justify denial of equal federal voting rights to U.S. citizens in Puerto Rico under the “commonwealth” regime.
That was an attempt to trick the U.S. Congress into thinking territorial status could be made permanent under the U.S. Constitution. In a sense the Catalonia and Puerto Rico autonomist movements present both central governments with the same choice the American southern alliance presented to Washington before the U.S. Civil War.
Specifically, will a nation that is in the nature of a federal union of sovereign regional states remain under a central supreme power, or become a confederation of separate sovereign nation states?
Contrived legal dualisms and political ambiguities about “national reality” inevitably must be reconciled with constitutional disciplines and accountability. The bankruptcy of the “commonwealth” regime and hurricane Maria are forcing the U.S. to decide if Puerto Rico will be a state or a nation in the future.
The Catalans are forcing Spain to make a choice. Is Spain a national federation with residual sovereignty over all its regions, like the U.S. and most other EU nations. Or, is Spain a confederation like the alliance of former Soviet bloc republics and Ethiopia.
Ceding sovereignty to Catalonia may be Spain’s choice, and it may be the right thing to do, but that’s something only Spain can decide.
As noted, the principle of government by consent articulated in the American Declaration of Independence is embodied in the U.S. Constitution. That keystone in the constitutional edifice of freedom from illiberalism in human affairs has been embraced by the United Nations as a transcendental and universal value.
At the same time, the constitutional order of nation states based on democratic self-determination and government by consent is also recognized under International law. Rule of law in duly constituted democracies is vital to human rights, freedom, justice and peace.
Therefore, if sovereignty is to be seized from a nation from within or without, it must either be enabled under the law of the nation(s) concerned, or taken by effective exercise of sovereign political power over the territory and population concerned. If sufficiently opposed, force of arms may or may not be determinative of the outcome.
Supremacy of law under the model for national federalism does not mean separation is impossible. It means that the nation must consent to it through the federal constitutional process.
The U.S. has recognized the right of Puerto Rico to independence and statehood, on terms approved by Congress and the majority of the voters. So Puerto Rico remains free to seek statehood or independence. The ease or difficulty in transition to either lies in the allocation of benefits and burdens that would accrue for the U.S. as the sovereign with the effective power of consent.
Independence would be easier than statehood, but that is where the consent of the people becomes most powerful. It resolves into a matter of whether Congress and the people can agree on mutually acceptable terms. If not, a unilateral declaration of either statehood or nationhood by the U.S. or Puerto Rico would put the territory in the same position as Catalonia is with Spain.
What Puerto Rico can not do is retain U.S. citizenship but claim a right to dual nationality, dual allegiance, dual patriotism. Puerto Rico can not demand dual status as both domestic and foreign, with dual or “bilateral” sovereignty.
Puerto Rico can not secure dual rights of citizenship in the territory equal to rights of citizens in the states. It is, again, the essence of U.S. federalism that only citizens in the states have equal right to consent of the governed, because only citizens of states vote for representation in Congress and the Electoral College.
That is the lesson of the American Civil War, which President Lincoln at Gettysburg called upon every American never to forget, lest by any measure of the agony visited upon our nation in that conflict the lessons of our liberty need be relearned anew in the future.
Howard Hills is the author of the book “Citizens Without A State” (2016) and former counsel on territorial law in the Executive Office of the President, National Security Council and U.S. Department of State.
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