Former U.S. Navy JAG counsel in the White House and National Security Council on political status negotiations for U.S. administered territories, Howard Hills, just updated a 2021 second edition of his 2016 book Citizens Without A State. CWAS is an authoritative, original and compelling historical and legal case study on self-determination and decolonization in Puerto Rico. He argues the U.S. “has cheated itself out of the benefits of our anti-colonial history,” resulting in failed federal territorial law and policy for Puerto Rico in the second half of the 20th Century that must be corrected.
Consistent with his findings and analysis on the breakdown of self-determination procedures for Puerto Rico, in CWAS second edition Hills defines next steps in the Puerto Rico status resolution process in terms that inform Congressional consideration of the 2021 Puerto Rico Statehood Admissions Act (H.R. 1522; S. 780).
Hills recently noted in an interview with PR51st that H.R. 51, the 2021 “Washington D.C. Admission Act,” also introduced in the 117th Congress, presents a historic choice to Congress and the nation about self-determination and equality in America. Here are some of Hills comments and observations about the D.C. statehood bill:
“Political dynamics in Congress in the 1990’s created a false narrative that Puerto Rico and D.C. statehood movements somehow were in competition. What has changed is that each of these two statehood movements has educated Congress and the nation on the merits of their respective quests for full equality and citizenship rights possible under the Constitution only through statehood or integration into an existing state.
And political dynamics have changed so that Puerto Rico and D.C. statehood movements do not need to either compete or move forward in tandem. Each can stand on the merits of its own petitions and not be encumbered by the other, and that in itself makes action by Congress to resolve the political status of either or both normative rather than somehow unnatural.”
Hills continued, “What also has changed is the muddled thinking about half measures that has been dispelled by clear thinking about the difference between statutory equity and constitutional equality. Congress can give D.C. and Puerto Rico equity by treating these political subdivisions like states for purposes of federal social safety net statutes. Congress can not deliver on equality with states as to political status and civil rights, because voting in federal elections for fully equal representation in Congress and the Electoral College is secured only under statehood or integration into an existing state.
While four states have been formed from existing states, and parts of more than one territory have been joined to form a state, there is no historic precedent for a territory to be appended to an existing state.
There is historical precedent for the people of D.C. who decide national citizenship alone without state citizenship rights is not equal and complete without state citizenship to re-acquire full and equal citizenship of a state and the nation, by re-integrating back into a state from which D.C. was formed. When that happened in 1846 the 1790 cession of state territory to the federal government by Virginia was reversed and Congress ceded half of the original D.C. back to Virginia.
Retrocession restored full equality of national and state citizenship for the greater Alexandria population. However, the 1846 retrocession was based on a majority vote of the people on the Virginia side of the Potomac. While reasonable people can disagree on statehood or retrocession for D.C. as a matter of policy and national interest, in the case of modern day D.C. the people have voted for statehood not retrocession returning D.C. to Maryland.”
Hills added, “In my own view, either statehood or retrocession for the residential community currently comprising greater D.C. would better serve U.S. national interests than continuation of federal governance of the community as a federal reservation in which the seat of government is located. Having lived and raised a family in D.C. for 17 years from 1982 to 1999, with five children in D.C. public schools K-12, I saw the limits of home rule up close and personal.
So-called ‘home rule’ without full and equal rights of citizenship is an unresolved and incomplete governance model for any community of U.S. citizens, unless by majority rule in an act of democratic self-determination the people of the community give consent to continuation of federal reservation status. Even then, consent to denial of equality is at best a constitutionally temporary status suitable for a body politic unprepared for full self-government at the national level.
The principle that just governments derive powers by consent of the governed is not merely a philosophical abstraction expressed in the Preamble of the Declaration of Independence. That transcendental idea was then articulated in the U.S. Constitution to make the previous union of states under the Articles of Confederation more perfect.
That was done by conferring on citizens of the states voting rights in federal elections for fully equal representation in Congress and the Electoral College, as provided in Art. I, Sec. 2 and Art. II, Sec. 1. The 23rd Amendment giving Electoral College votes to D.C. does not solve the problem of disenfranchisement, but rather confirmed denial of equality. The idea of partial but not complete equality in the Electoral College but not Congress is more akin than we want to think to the fractional representation of persons in human bondage under the 3/5th’s clause of the original slave-era Constitution.
Democratic self-determination has produced repeated votes by the people of D.C. rejecting the current status and expressing the aspiration for full and equal rights of citizenship attainable only through eligibility to vote in a state. The current status of the residential community in D.C. is not sustainable consistent with the U.S. system of constitutional federalism and principle of government by consent promised to our people.”
American success story
Summing up Hills noted, “Retrocession is within the power of Congress, but without the agreement of the citizens of D.C. and/or Maryland it might not be feasible. The admission of a new state to the union based on democratically expressed aspirations of a body politic seeking it is the ultimate celebration of the American success story.
It is a success story that includes the decision by popular sovereignty of British subjects to instigate rebellion against the tyranny of British imperial rule over the colonials. The work of making the Constitution more perfect will never end, but clearly H.R. 51 presents Congress with the choice of enabling D.C. to either become a state or return to enfranchisement as residential areas in Maryland. That now seems to have become essential to the work at hand to make the union more perfect.”
Howard Hills is former lead counsel on political status negotiations in the Executive Office of the President and Department of Defense Advisor in the National Security Council on territorial status law. He also served as General Counsel of the Overseas Private Investment Corporation, now Development Finance Corporation. He is author of “Citizens Without A State” with foreword by former U.S. Attorney General Richard Thornburgh, a new second edition of which is available at PR51st.com. All opinions expressed by Mr. Hills are his personal views and not those of any other person or entity, public or private.