At a time when there has been speculation in the media about the mere mention of statehood for Greenland and Venezuela, it is important to recognize that conferral of statehood has never occurred as a method of territorial expansion. Rather, the U.S. first has acquired sovereignty over territories outside of the states of the union, and in the tradition of the Northwest Ordinance as a founding document of the Republic has admitted states That typically has led to imperfect local self-government by consent, until the people of the territory become states based on democratic self-determination by U.S. citizens in each territory.
That fulfills and affirms the essential American idea that was the promise of the Declaration of Independence: That just government derives only from consent of the governed to embrace the duties and seek the blessings of equal citizenship rights in a sovereign nation. As we celebrate the 250th anniversary of the Declaration of Independence, we are reminded and re-dedicated to the principles of government by consent embodied in the “more perfect” union instituted by the U.S. Constitution. America implements the Declaration Independence as a republic by providing for government by consent through representation in Congress and the Electoral College.
Statehood is for U.S. citizens
And, so, the journey to statehood for any territory begins not by conferring statehood on a foreign population, but by establishment of U.S. sovereignty by treaty, purchase, or federal statute, which historically has resulted in the political status of a territory under Art. IV, Section 3, Clause 2 of the U.S. Constitution. When a territory is determined by Congress to have a large enough land mass and population and to be politically, economically and socially integrated in the political economy of the nation, that is when the debate over admission to the union begins under Article IV Section 1 of the U.S. Constitution.
Statehood is significant
The addition of new states to the union is among the most significant actions the United States government is constitutionally enabled and empowered to mandate. It is as much or indeed even greater than any other exercise of sovereignty through the American system of constitutional federalism. It ranks with or above enactment of federal laws conferring U.S. citizenship on people not born in a state, or declaring war to defend the union of states and U.S. territories.
President Trump’s informal personal speculation about statehood for foreign peoples in Greenland or Venezuela naturally causes 3.2 million U.S. citizens in Puerto Rico to do a double-take. The question of a future political status for Puerto Rico with equal rights of citizenship at the national level has gone unanswered by Congress, the White House, and the Supreme Court for 109 years. After the Russian cession that established U.S. sovereignty and conferred U.S. citizenship for Alaska, the transition to statehood took 96 years.
That is why, in the modern era when Puerto Rico is more ready for statehood than most territories were when they were admitted as states, joining the union as a state has been approved by majority vote of our fellow Americans. That sentiment is shared by millions of Americans in the states who believe statehood for Puerto Rico is long overdue.
Statehood for Puerto Rico
After decades under confusing court rulings and federal laws defining Puerto Rico’s current status and terms for future status options, four times since 2012 our fellow American citizens in Puerto Rico have voted for statehood. Puerto Rico is more ready for statehood politically and economically than most if not all territories admitted as states since 1796.
So for our fellow U.S. citizens in Puerto Rico Rico, this inevitably leads to a very serious discussion about the history of status resolution for the five remaining U.S. territories, and the sixth territory, the Philippines, the only U.S. Article IV territory that was never offered the possibility of U.S. citizenship or incorporation into the union under the Constitution leading to statehood. The U.S. denied citizenship and chose independence for the territory of Philippine acquired from Spain under the same treaty that made Puerto Rico a U.S. territory.
Unlike the Philippines, Puerto Rico received U.S. citizenship in 1917. But unlike Hawaii and Alaska and 30 other territories that became states, Puerto Rico’s attainment of U.S. citizenship was not recognized by Congress as a promise in the tradition of the Northwest Ordinance to apply the Constitution directly in Puerto Rico. That is why Puerto Rico was not put on the path to statehood that culminated in the Post-WWII period for Alaska and Hawaii, even though Puerto Rico had been a territory as long as Hawaii.
The insular cases
That was due to confusion in Supreme Court rulings from 1901 to 1922 that held the Constitution applied in Hawaii and Alaska where U.S. citizenship had been granted by Congress, but that the Constitution applied on a more limited basis in Puerto Rico, as it had in the Philippines.
By the logic of those early 20th century Supreme Court cases, the Constitution should have applied in Puerto Rico where U.S. citizenship was granted by Congress in the same manner as in Hawaii and Alaska. But a rogue Supreme Court ruling in 1922 instead treated the U.S. citizens in Puerto Rico the same as the non-citizens in the Philippines on its journey from a U.S. colonial territory to nationhood.
The non-citizens of the Philippines had been fighting a war for independence under Spain, and continued pro-independence insurrection during the fist decade of American territorial rule. In 1934 the U.S. Congress offered independent nationhood to the Philippines under a transitional constitution. After being, along with Guam. the only U.S. soil conquered and occupied in WWII, after liberation by the U.S. the Philippines territory became the independent Republic of the Philippines in 1946.
Statehood for Venezuela?
Puerto Rico endured the confusion over status and through informed self-determination made the choice of statehood. Americans in Puerto Rico were given a choice between remaining a territory, independence, separate sovereign nationhood with a treaty of alliance with the U.S. that either party could terminate, or statehood. Our fellow U.S. citizens in Puerto Rico chose among all status options compatible with the U.S. Constitution.
Ironically, the idea of statehood for Venezuela seems to imagine Venezuela overtaking Puerto Rico by conferring not only U.S. citizenship but statehood on a foreign population in a foreign nation. The same would be true of Greenland. Millions of Americans would understand that would be circumventing the constitutional tradition of the Northwest Ordinance as a founding document of the Republic. After all, that is the process by which all 32 territories that became states were admitted to the union, starting with Tennessee in 1796 and including most recently Hawaii and Alaska in 1959.
In addition, it should be noted that four states were formed from existing states under Article IV, Section 1 of the Constitution, with the consent of the state legislatures concerned. Vermont separated from New York, Maine from Massachusetts, Kentucky and West Virginia from Virginia.
Finally, Texas was part of a Mexican state, but occupied and controlled by U.S. citizens, who fought a war of independence from Mexico. Texas declared itself a Republic and won international recognition, then petitioned for admission to the union in 1845.
So, Texas was never an Article IV territory, but instead was an independent republic. However, even though its petition for admission was treated as an international matter by the U.S. Senate Foreign Relations Committee, it was not admitted by the Senate through the procedure for 2/3’s ratification of a treaty. Instead, Texas was admitted as a state by Joint Resolution of both Houses by simple majority vote not obtainable in the Senate. That mimicked and was constitutionally conflated with Article IV admission of Article IV territories.
While others may speculate about Venezuela or Greenland becoming states, the 3.2 million American citizens in Puerto Rico need to attend to the business at hand. That means deliver statehood because that is what our fellow citizens have chosen. That is the legacy of the Northwest Ordinance, Thomas Jefferson’s road map for enlarging the realms of American freedom, rule of law and prosperity through expansion of statehood based on consent of the governed, a principle enshrined in the Declaration of Independence and adopted in the Charter of the United Nations .
Howard Hills is a former legal advisor on territorial status in the Executive Office of the President, National Security Council and U.S. State Department. He is author of the book Citizens Without A State.
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