Reader Louis Arroyo left a comment on our recent post, “Have Congress and Courts Rehabilitated the Insular Cases?” See his comment below, and the response of article author Howard Hills.
So basically nobody alive today, no matter how young, will ever see a change in PR or any other Territorry’s political status!!
That is not the conclusion we would draw from the article. The real message is that no matter how many gimmicks appear to bring territories closer to state-like equality, the only path to full and equal national citizenship is statehood or nationhood.
The specific point is that the Insular Cases are not the cause or reason U.S. citizens in Puerto Rico do not have equal voting rights for representation in Congress and the Electoral College. Without those equal rights all other forms of state-like equality are given and can be taken back at the pleasure of Congress and the federal government without accountability to the U.S. citizens of Puerto Rico.
The Insular Cases may have been racist in attitude, and enabled an imperialist policy under a colonialist status. But the Insular Cases do not prevent Congress from granting statehood or independence to Puerto Rico. The Insular Cases simply mean Congress can govern the unincorporated territories without applying the U.S. Constitution in the same way it applies in territories which are permanently incorporated into the union under the Constitution, as a step toward statehood.
But even incorporated territories are denied full equality through voting rights for full representation in Congress and the Electoral College. It is only when incorporation culminates in statehood that full equality is constitutionally possible. That is because the U.S. is a federation of states. Voting power is divided among the states based on a formula the balances representation based on population with equal representation for all states large and small. Convert to national majority rule instead of apportionment of power to the states and states no longer exist in any meaningful sense.
The Insular Cases do not prevent Congress from incorporating the territory under the U.S. Constitution, or admitting a territory as a state. That is a political decision by Congress, not a legal decision for the courts.
The hope for status resolution and equal rights of national citizenship lies in realism, recognizing that only statehood or nationhood make equality possible. Puerto Rico was diverted from the cause and the path to equality and liberty that for U.S. citizens come only with statehood, by a false promise that “autonomy” would compensate and justify the lack of equality.
For 75 years the PDP claimed to value U.S. citizenship, but opposed statehood based on the myth that “special rights” under autonomy were a satisfactory substitute for equal rights. That myth was used by the PDP to preserve its local political power, and it was used by the colonialists in the federal government to deny equal political rights and equal economic opportunity to the American citizens in Puerto Rico.
It also was used to deny national independence to Puerto Rico. Those in Congress who found the choice between statehood and nationhood too complicated and difficult, or simply inconvenient if it could be avoided, used the PDP and the myth of autonomy under ELA to delay as long as possible — or even permanently– the end of a colonialist status.
In other words, ELA was used to enable the U.S. to practice colonialism and deny informed democratic self-determination, and the PDP aided and abetted that colonialist policy. The best evidence that is was an undemocratic condition is that 5 million Americans moved from Puerto Rico to the states, and only 3.8 million remained in the territory.
Naturally, a territory does not have the same power and influence as states, so state-like treatment is never equal to how states are treated. Among many inequalities that come with territorial status and ELA was lack of the fiscal accountability that states have, as well as a lesser level of emergency preparedness.
Thus, when the PDP could not deliver on state-like prosperity the government borrowed more than it could afford to pay back and went bankrupt. Soon after that a natural disaster struck and infrastructure that was not state-like was not even as hardened as nearby poor Caribbean nations, much less states. The result was social, economic catastrophe that drove another 900,000 citizens in Puerto Rico to vote with their feet and move to states.
Now there is a global pandemic, and the only thing for certain is that no matter how unprepared the states may be, territories will be less prepared than states to deal with this public health emergency.
A failed experiment
So the question becomes, what will it take until the people will say yes or no to statehood, and then if the answer is no then decide yes or no on nationhood? If the answer is no to statehood and no to nationhood, then the choice is the status quo.
The actual law of the Insular Cases defining unincorporated status has been affirmed even after institutionalized racism and unilateral imperialism and colonialism passed into history after WWII.
The last five unincorporated territories remain in a statue of developmental arrest now because the local territorial governments and voters have collaborated with experimentation by Congress with state-like treatment, with “special rights” of “autonomy,” under which territorial status might become an indefinite if not permanent status.
In Puerto Rico that experiment was called “commonwealth,” or, ELA, and it failed. That is why the U.S. citizens of Puerto Rico finally voted for statehood in 2012, and the territorial government petitioned Congress for admission to the union.
Puerto Rico’s 2012 and 2017 votes for statehood were a historic democratic rejection of the “autonomy” experiment known as “commonwealth.” It means the governed no longer consent to the status quo and “commonwealth” regime of territorial government based on the false and failed promise of autonomy.
Of course, there is no legal right to territorial incorporation or admission as a state, that is a political decision by Congress. Neither Congress, the White House or the federal courts have exercised their respective powers to institute a federal policy committed to incorporation or statehood.
Action by Congress
Yet, even if federal authorities question the finality of the last two votes or views the results as as inconclusive, it remains true that Puerto Rico today is more integrated into the U.S. and more ready for statehood than the 32 territories that have been admitted as states.
Meanwhile, in comparison, unincorporated territory status continues in the small island possession of American Samoa, Guam, Northern Mariana Islands and U.S. Virgin Islands because the local territorial governments have not petitioned Congress for statehood.
These territorial regimes organized by Congress have good reason to doubt Congress will grant statehood separately or even if joined together. In addition, these four territorial regimes appear disinclined to seek integration into an existing states due to the perception that being a county in a state is inferior to being a territory.
Thus, Congress is faced with the need to define status choices for each territory consistent with principles of local self-determination. Puerto Rico is the only territory that has made a choice. If Congress wants to confirm the choice that was made in 2012, a yes or no vote on statehood is the method employed in all other similarly situated territories that became states.
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