By Howard Hills

Gaming Cock Prohibition Reveals “Autonomy” Hoax

Although not fully recognized by many in Congress and the American public, in historical and political terms Puerto Rico has begun its transition from an obsolete territory status to full equality and democratic self-government at the national level through statehood. The impact of Puerto Rico issues and voters from Puerto Rico in pivotal races in Florida and other battleground states in the 2018 mid-term elections makes statehood highly probable, and historically more certain than ever, if not inevitable.

That is a political truism, unless the 3.3 million U.S. citizens in Puerto Rico change their minds and democratically vote to repudiate the 2012 and 2017 majority votes for statehood. Otherwise, if not already clear it soon will be that registered voters among 6 million U.S. citizen from Puerto Rico in the 50 states increasingly will force local, state and national candidates to embrace future statehood for the 120 year old U.S. territory.

Yet, suddenly it appeared the U.S Congress had decided the local cockfighting tradition Puerto Rico inherited from Spain is not socially tolerable, even as a government regulated sport. Instead, the tradition and local customs for recreational cockfight gaming have been branded a cultural vice that must be eradicated.

2018 ended amid national political strife in Washington as well as local twin fiscal and natural disaster crises in San Juan, with solutions to many real problems not yet determined. That did not prevent the U.S. House of Representatives and Senate from finalizing legislation that included a provision making cockfighting a federal crime in U.S. territories.

There is considerable irony in the umbrage people of all political persuasions in Puerto Rico took to the prospect of federal law imposing a unilateral ban on cockfighting in the territory. The casual ease with which Congress seemed ready to impose the cockfighting ban demonstrated in a way that was uniquely unmistakable to every person in Puerto Rico that the “commonwealth” regime of territorial government truly was not a form of “autonomy” but a home rule hoax, as its critics had always claimed.

Thus, the federal cockfighting ban is a powerful demonstration of how statehood will enhance local control of local issues and autonomy over matters of home rule. Cockfighting is obviously not a make or break issue in the overall status resolution process, but it is instructive in a way that statehood supporters can and should exploit.

Indeed, the real message of the game cock ban to the average man and woman on the street in Puerto Rico is clear and undeniable. For it is not lost on anyone that the legislation including the cock gaming ban was so divisive – for reasons not related to cockfighting – that the legislation passed in the House of Representatives by just two votes.

This is perhaps the most telling and ultimate irony, since it is a tangible and glaring demonstration that were Puerto Rico a state its five House members alone could have defeated the bill, unless its sponsors agreed to drop the local game cock ban.

Who knows if a future Puerto Rico delegation in Congress with full voting rights could would be induced by other benefits of the bill to accept the cockfighting ban, but that question will never be relevant until our fellow citizens in the territory have the same voting representation in Congress as citizens who vote in the states.

Cockfighting a Lesser “Vice” Under Spanish and U.S. Rule

There is no greater irony than the tendency for colonized peoples to adopt the vices more than the virtues or their imperialist rulers. On every continent the scourge of tobacco and alcohol introduced to indigenous peoples under colonial rule often ruined the lives and potential of the best and brightest indigenous leaders.

Even more insidious vices adopted by colonized people included abuse of imperial powers to perpetuate economic and political exploitation under unjust and undemocratic colonial regimes. In the case of both British colonial rule in America and Spanish empire in the Caribbean and Latin America, the most evil of all vices was slavery.

The vice of slavery established by the British in America was allowed to continue under the U.S. Constitution, subject to the supremacy of federal law that eventually led to its abolition during the tragedy of the Civil War. Yet, the ironic tendency of those exploited by tyranny to mimic vices of tyrants was demonstrated in the U.S. by the Choctaw, Seminole, and Creek tribes, who joined the American colonists of European origins in embracing the vice of slavery.

These and other tribes imported African slaves to work under often worse conditions of servitude on tribal farms in slave states and territories. Several slaveholding tribes even joined the confederacy to fight against the Union in the Civil War.

Similarly, the ruling class of Spanish colonists in Puerto Rico practiced the vice of slavery until more than a decade after slaves were freed in the United States. Thus, slaves were freed in America by presidential proclamation in 1863, confirmed by a constitutional amendment in 1865. In Puerto Rico, Spain did not abolish slavery until 1873, after paying reparations to slave owners but not slaves, and extending involuntary servitude until 1876.

In Puerto Rico the vices of Spanish rulers included anti-democratic schemes to perpetuate the colonial regime. Thus, 120 years ago Spain granted “autonomy” to Puerto Rico as part of a political hoax to neutralize the local anti-colonial movement. That was 1898, shortly before Spain acted without consulting its citizens in Puerto Rico to transfer sovereign rule over their homeland to America.

Fifty years after Puerto Rico became a U.S. territorial possession the American government acted in collusion with ambitious local leaders to repeat the Spanish “autonomy” hoax. Only this time the purpose was to derail decolonization under United Nations oversight and sustain the territorial regime by deferring indefinitely the choice between the non-territorial status options: statehood and nationhood.

That new “autonomy” hoax perpetrated in 1952 was given the name “commonwealth,” and like the earlier Spanish “Charter of Autonomy” the commonwealth hoax eventually would be exposed as a false promise of democracy. Over the next four decades the unfulfilled promise of greater democratic rights under “commonwealth” became undeniable, until the federal and local government were forced by popular will to allow self-determination on clear choices for fully decolonizing status resolution through statehood or nationhood.

Outlawing Local Sport Has Unintended Consequences

In a sense, no matter what the ultimate disposition of the cockfighting ban might be, its approval by the lower house of Congress and acceptance by the upper house did more to confirm that autonomy had failed Puerto Rico than earlier far more heavy handed federal actions nullifying local powers. Not the least being the federal PROMESA law enabling a federal financial control board to supersede local government authority.

Again, no matter the ultimate outcome of the PROMESA process much less the cockfighting ban, the prohibition of a local customary recreational tradition crystalized the reality that “commonwealth” was a farce. Those who had stubbornly refused to accept that reality found the cockfighting ban cathartic. After decades of denial more people than ever realized the myth of local autonomy had been utterly discredited and rejected by Congress, White House, U.S. Supreme Court, as well as local voters who rejected territory status and chose statehood in 2012 and 2017 status votes.

Even the most staunch statehood supporters already well aware that “autonomous commonwealth” was a failed ideology were taken aback that Washington would reject cockfighting as vice to be eradicated, without any consultations with Puerto Rico’s elected leaders. But while anti-statehood leaders bemoaned the cockfighting ban as cultural imperialism, statehood supporters correctly noted the unilateral action by Congress proved equal rights of citizenship under statehood was the only solution to the democratic deficit under territorial status.

For statehood supporters the cockfighting ban is in a sense the best evidence that “commonwealth” does not create a zone of local “autonomy.” What has been clear to statehood supporters became even more clear to “commonwealth” sympathizers clinging to sentimental notions about local autonomy. No one can argue any longer that “commonwealth” defines vested sovereignty beyond the reach of a Congress in which Puerto Rico has no voting representation.

No one can deny the imposition of the ban demonstrated the purpose and value of the rights states have under the 10th Amendment to exercise sovereignty over those local matters not vested in the federal government. While federal supremacy and expansion of federal powers may intrude upon state rights in the federal power sharing process, there is a zone of state sovereignty that federal courts can and do protect, in addition to the protection of state rights provided by full voting representation in both houses of Congress.

In contrast, the cockfighting ban perhaps more than any other federal invasion into the sphere of local political affairs exposes the “commonwealth” myth of local autonomy as a 70 year political and ideological lie. To understand why the federal cockfighting ban is the last symbolic nail in the coffin of the “autonomy” myth, one must understand the history of broken promises about local autonomy under Spanish and American colonial regimes.

Anatomy of a Colonialist Hoax

Let’s start with the fact that Puerto Rico’s anti-statehood autonomists claim the “commonwealth” regime of territorial government guarantees home rule on “local” matters of law and policy. But what could be more local than licensing and regulation of animal husbandry and gaming contests for a local recreational tradition, on an island territory where that sport has flourished for centuries under both Spanish and American imperial rule?

What this means is that the so-called “autonomy” allowed under the “commonwealth” territorial regime not only failed to preserve federal tax policies once promoted as a pillar of the status quo, but also failed to establish local home rule in purely local matters. Even the local constitution ratified by the voters and Congress in 1952 and all local laws enacted under the territorial regime are null and void to the extent of inconsistency with any current or future federal law or court ruling. That makes it undeniable that “commonwealth” is a reversible delegation of federal power to the territorial government for home rule on local matters not otherwise determined by federal law.

Congress can preempt territorial laws without giving a second thought to the 10th Amendment or state rights. Even if Congress passed a federal law restraining its plenary power with self-imposed obligation to change local law only with “mutual consent,” that statute also could be repealed by Congress. One Congress can not bind another, the Constitution itself is the only permanent law, so a constitutional amendment would be required to limit the power of Congress to repeal a law adopted by Congress.

Coupled with the fact that no federal court has ever invalidated any act of Congress based on territorial status or rights, the Congress has good reason to believe the cockfighting ban will be upheld if challenged in court. Therein lies the great irony that “commonwealth” regime did not even protect or preserve something so clearly local and not federal as locally licensed and regulated cockfighting enterprises.

Thus, it is not the local nature of the issue but the plenary nature of federal power to grant and accordingly to rescind delegations of federal authority that defines territorial status as less than fully democratic. In all federal and local matters Congress retains residual sovereignty even after it delegates powers to govern territories through local regimes for administration of civil affairs in the territory.

It must be noted that under previous federal law the U.S. Congress treated cockfighting as a state rights issue, but required states to exercise authority and responsibility to license and regulate the sport to avoid federal intervention. The new ban supersedes state rights to regulate the sport.

However, the anti-statehood opposition party that defends “commonwealth” can not exploit the federal ban as proof the 10th Amendment does not protect state rights, because territories have even less local autonomy than states. This too confirms the reality that Puerto Rico as a “commonwealth” clearly has less ability to protect local culture than it will as a state.

Moreover, in the 2016 case of Puerto Rico v. Sanchez Valle the U.S. Supreme Court ruled that Puerto Rico will not have any vested right of sovereignty or local control as long as it remains a territory. That ruling confirmed Puerto Rico can achieve the degree of local sovereignty states have under the 10th Amendment only by becoming a state.

Congress Extends Federalized Ban To Territories

It is also ironic that all 50 states already banned cockfighting, so in reality the federal ban applies only to the U.S. territories. Since Puerto Rico is the only territory in which cockfighting is still a commercially and culturally important enterprise sector, a little background helps understand why the federal ban is a fitting political metaphor.

Puerto Rico was one of three American territories that had been ruled by Spain for centuries, under colonial regimes far more oppressive and tyrannical than any other European imperial power. Spain’s husbandry of fighting cocks and devotion to the sport spread to Guam and the Philippines as well as Puerto Rico, continuing to thrive under American territorial rule.

Cockfighting also became a national sport in Britain, was introduced in its colonies and continued after the American Revolution ended British Colonial rule. George Washington raised and trained gaming cocks as did many if not most men of means in most if not all the colonies.

But cockfighting began to lose its appeal to an increasing sentiment among many in America preferring animal husbandry sports in which death of the animals was not the object. That led many Americans to see cockfighting in the same way we saw Spain’s bullfighting spectacle, a sport rigged against the creatures and beasts used as surrogates for human contestants.

This perception led to the state bans that now have been nationalized as a universal federal ban including territories.

Idealizing Iberian Heritage

After the Philippines became an independent nation cockfighting became an important commercial recreation industry and popular sport employing a comparatively large workforce. While the sport faded somewhat along with dog racing in Guam, cockfighting remains a vital sport sector in Puerto Rico.

Puerto Rico’s sustained affinity for cockfighting may be attributable to waning but still pronounced fixation on revival of vestigial and even anachronistic conventions of Spanish culture throughout the Iberian peninsula. Given the unique brutality and tyranny of Spanish colonial rule in Puerto Rico and throughout the Americas for 400 years, this fixation expresses a collective cognitive dissonance about whether America will redeem the promise of democracy in its last large and populous territory.

Despite the social reality of creative and successful cross-assimilation with the mainland in the American era, there remains a sentimental attachment to Iberian influences among small anti-statehood factions in Puerto Rico. There is a stubborn collective sense among many Quixotic anti-statehood autonomists that Spain somehow remains the cultural motherland.

Anti-statehood autonomists in particular cling – if only in the abstract – to a romanticized cultural memory of a Spain that no longer exists. Indeed, many Puerto Ricans report experiencing discrimination in Spain, often even feeling judged for speaking Spanish differently.

The ideological narrative that emerges is that idealizing the Spanish era perhaps is best explained and understood as a form of passive aggressive defiance of American rule. Not because Puerto Rico should be an independent nation or anyone wants to restore Spanish influence, but rather as one expression or frustration and anger because America has not made up its mind on statehood, and instead has left Puerto Rico in political limbo for more than a century.

It is a historical truism that the ability of the autonomist movement in Puerto Rico to form a viable political party with a platform based on a legal and political hoax was proportional to the failure of the U.S. to define a future status choice for Puerto Rico based on sound principles of democracy and equal political rights. Granting U.S. citizenship without a path to equal rights of citizenship in a sense forced those who didn’t believe statehood was possible to revive the Spanish autonomy hoax and invent “commonwealth.”

Adding Insult To Injury

So there truly is a deeper irony in the current populist reaction by our fellow Americans in Puerto Rico to prohibition of a sentimental ritual of the old world heritage. It is a reaction that ranges from strident posturing to knowing bemusement, but across the spectrum the cock gaming ban is recognized as a symbolic cultural slap-in-the-face underscoring disempowerment of “commonwealth.”

The bemusement of those who know “commonwealth” was never viable is that the cockfighting ban is the least of U.S. offenses against democracy compared to other unilateral federal incursions into local home rule. Here, then, is a short list of the anti-democratic law and policy that will be allowed by the U.S. Constitution as long as the current territorial status continues:

  • 3.7 million U.S. citizens pay billions in federal taxes, more than some states, but federal courts uphold federal law providing federal benefits in Puerto Rico at a lower level than citizens in the states receive.
  • Americans from Puerto Rico serve in the U.S. military at a higher per capita rate than most states, but as long as the island remains a territory our fellow citizens there can never exercise voting rights in federal elections for full representation allocated only to states in the Congress and Electoral College.
  • Congress and federal courts have never declared any federal law applicable to Puerto Rico unconstitutional based on rights of the current status, no matter how discriminatory or limited the federal interest.
  • Provisions of the territorial constitution and local law are frequently suspended and/or nullified by Congress and federal courts regardless of how purely local, how great the local interest, or important the issue may be in local society.

Perhaps the irony of a ban by Puerto Rico’s current rulers in Washington, treating a tradition of its former rulers from Madrid as a vice, explains why Americans in Puerto Rico who don’t even like cockfighting are offended.

Having the sport outlawed by a Congress in which the U.S. citizens of Puerto Rico are not represented bends the logic of both American cultural values and democratic principles. In that sense it is a classic case of adding cultural insult to the political injury of disenfranchisement.

Statehood Remains the Only Remedy Consistent with U.S. Citizenship

Spain’s false promise of autonomy for Puerto Rico in 1898 proved to be a political trick to make continued colonial rule by Madrid appear more tolerable. More precisely, it was a scam by the new liberal regime in Spain to keep Spanish colonials from re-aligning with pro-independence and pro-American factions.

The U.S. invasion and annexation of Puerto Rico enabled Spain to pretend its “autonomy” farce in Puerto Rico would have been a success if not for American imperialism. That historical lie enabled Madrid to take the autonomy playbook off the shelf in 1932, repackage it as a Charter of Autonomy, a fake sovereignty gimmick to appease the separatist province of Catalonia, yet another Spanish scheme to suppress pro-independence aspirations.

The fraudulent promise of autonomy for Catalonia in 1932 worked for almost 9 decades until it imploded in 2017, when elected leaders in Barcelona asserting national sovereignty were indicted as traitors and driven into exile. During the period before 2017 when the Catalonian autonomy charade was exposed as a hoax, Puerto Rico autonomy faction leaders indoctrinated gullible followers the Catalonia autonomy model was a blueprint for a new autonomy movement in Puerto Rico.

That led to a new “autonomy” hoax for Puerto Rico in 1950, this time a collaboration between local anti-statehood factions and the anti-statehood leaders in Washington. Accordingly, at that time Congress authorized a local territorial constitution which upon adoption in 1952 became the basis for a new hoax in which “commonwealth” was proclaimed an attainment of “sovereign associated nation-state” status. The U.S. and Puerto Rican governments even inaccurately told the U.N. in 1953 that Puerto Rico was sufficiently autonomous to be re-classified under international law as self-governing.

For decades the anti-statehood “autonomists” in Puerto Rico absurdly have asserted that the 1952 federal law granting “local self-government” meant Congress had ceded sovereignty over “internal” affairs to the territorial government. According to the autonomy party this made statehood and representation in Congress unnecessary, because it was falsely asserted Congress must get “mutual consent” of Puerto Rico to impose federal taxation or makes laws governing local matters.

In 2005 a White House Task Force established by President Clinton declared the political and legal doctrines asserting Puerto Rico’s “autonomy” as a form of vested sovereignty unrealistic and legally invalid. In 1998 Congress agreed, and in 2016 the U.S. Supreme Court agreed with the White House and Congress that Puerto Rico’s “commonwealth” regime of territorial government does not create a zone of local sovereignty beyond the reach of Congress without Puerto Rico’s consent.

That meant all matters whether local or not remain subject to supremacy of U.S. federal law and that the “commonwealth” regime exists at the pleasure of Congress, with or without local local consent. In this context, then, the real meaning of the cockfighting ban is that Puerto Rico needs to be as empowered as states are in the federal political process, at least if U.S. citizenship is still to be conferred in the territory.

Only when our fellow citizens in Puerto Rico have the right to government by consent through representation in Congress and the Electoral College that comes only through statehood, will Puerto Rico be equally empowered and thus morally obliged to accept the outcome of the federal political or legal process.

The reality that Congress and Puerto Rico now face is the same it has been since citizenship was conferred a century ago. It is that the U.S. Constitution purposefully limits the rights of American citizens subject to U.S sovereignty to vote in federal elections for full representation in the national political process to citizens eligible to vote in a state.

The decentralization of voting rights in the process for consent of the governed to citizens of the states has proven to be the single most powerful force through which the American system of federalism empowers the people to do the never ending work of making the union more perfect.

Anyone who thinks they have a better idea can not change the allocation of voting power based on apportionment to state populations by operation of a statute adopted under Article I, Section 8. Instead, any change to state based voting would require an amendment to Article I, Section 2 and Article II, Section 1, promulgated formally under Article V of the Constitution.

Good luck on that one.

Howard Hills is a former legal counsel on territorial law and policy in the Executive Office of the President, National Security Council and U.S. Department of State. He is author of the book Citizens Without A State, with Foreword by former U.S. Attorney General Thornburgh.



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