Mensaje Estadista Kenneth D. McClintock
The Honorable Kenneth D. McClintock
Secretary of State of Puerto Rico
CCAA’s 36th Annual Conference on the Caribbean and Central America
November 30, 2012
I appear before you today, for the last time as Puerto Rico’s Secretary of State and, no, I will not speak to the recent steps to interconnect the Caribbean into one energy market. Today I would like to share with you my thoughts on an issue that is of great importance not only to the United States, but has also been of considerable interest to our neighbors in the CaribbeanBasin and the rest of the Hemisphere. Those who will succeed the Governor and me on January 2, have very different views on the issue I will be addressing.
On November 6th, Election Day, a plebiscite was held on the preference of voters in Puerto Rico regarding the Island’s political status. Technically, Puerto Rico is a non-incorporated territory of the United States.
Voters were asked two questions on a single ballot. First they were asked if they agreed that Puerto Rico should continue to have its present form of territorial status which its supporters often refer to as “commonwealth” or “estado libre asociado”, for short “ela”, in Spanish.
Out of 1,775,893 voters, 958,915, or 54%, responded “No” —an unequivocal majority. It is also worth noting that rejection of Puerto Rico’s territorial status gathered 69,471 more votes than the Governor-Elect, who campaigned in favor of a “yes” vote, the option that polled a minority of 46%.
For the first time in history the American citizens of Puerto Rico voted against the Island’s territorial status. This is of great significance because it has been argued that Puerto Ricans have consented to it in a 1952 referendum on the Constitution of the Commonwealth of Puerto Rico in which they were not offered an status choices, as well as in several plebiscites.
The Declaration of Independence recognizes that governments derive “their just powers from the consent of the governed.” Puerto Rico’s current political status is clearly unjust because American citizens residing in the Island lack proportional and voting representation in Congress, as well as participation in the election of the President, and are subject to unequal treatment by Congress.
Let us say, for the sake of argument, that citizens can consent to subordination and inequality. With this plebiscite, the American citizens of Puerto Rico have withdrawn any plausible consent to Congress ruling over the Island by virtue of the Territory Clause of the U.S. Constitution.
Let us go over the second question on the ballot. Regardless of how voters responded to the first question, they offered the opportunity to express their preference among the following non-territorial political status options: statehood, independence and free association. These are the three methods by which a territory can achieve a full measure self-government as recognized by the United Nations General Assembly in Resolution 1541 (XV) of 1960.
Out of the 1,348,686 chore decided to answer the second question, 824,195 or 61.11% voted for statehood; 74,812 or 5.55% voted for independence and 449,679 or 33.34% voted for free association.
Needless to say, statehood opponents have questioned the legitimacy of the plebiscite and the validity of the statehood majority. The time I have available for my remarks will not allow me to respond to all the attempts made by statehood opponents to spin the plebiscite results. But the question still remains: How should The White House and Congress respond?
Before The White House and Congress begin to analyze the plebiscite results they should understand how Puerto Rico’s unincorporated status originated and the effects it has had on the American citizens residing on the Island. A little legal history lesson will be required.
Puerto Rico has been a territory of the United States since 1898. In 1901, when Puerto Ricans were not yet American citizens, the U.S. Supreme Court decided in Downes v. Bidwell that the exercise of sovereignty over Puerto Rico following the Spanish-American War did not make the Island a part of the United States but only its possession. Please forgive the tortured wording of Justice Edward Douglass White that I am about to quote:
“[W]hile in an international sense Porto Rico was not a foreign country, since it was subject to the sovereignty of and was owned by the United States, it was foreign to the United States in a domestic sense, because the island had not been incorporated into the United States, but was merely appurtenant thereto as a possession.”
I am a history buff and cannot help finding historic connections. Justice White was born in a Louisiana plantation; fought for the Confederate Army; studied law at the University of Louisiana now named Tulane, my alma mater; sided with the seven justices whose majority opinion in Plessy v. Ferguson upheld the constitutionality of racial segregation in the State of Louisiana in 1896; and was elevated to Chief Justice of the Supreme Court by President William Howard Taft. You will later see how all of this is relevant.
After Congress granted American citizenship to the inhabitants of Puerto Rico in 1917 it was generally understood that the Island had been incorporated into the United States. If Puerto Ricans are natural-born American citizens, would it not be inescapable that Puerto Rico is a part of the United States? Ask yourselves: in which country of the world can a person become an American citizen at birth other than in United States? And yet, 95 years and millions of births later, Puerto Rico is still not considered a part of the United States. Why is that?
In 1922, five years after the granting of citizenship, the U.S. Supreme Court revisited the question of Puerto Rico’s political status in Balzac v. People of Porto Rico.
The opinion of the Court was written by Chief Justice Taft —the same William Howard Taft who previously had held the office of President of the United States, elevated Edward Douglass White to Chief Justice in 1910, and wrote the opinion of the Court in Lum v. Rice which, in 1927, ruled that the Fourteenth Amendment of the U.S. Constitution did not prohibit the segregation of Asian and white children in Mississippi state schools using the infamous decision of Plessy v. Ferguson as precedent.
Disavowing Congress and departing from the precedents of Alaska and the Louisiana Purchase, the Supreme Court, in an act of judicial legislation, decided that the grant of citizenship to the inhabitants of Puerto Rico did not result in incorporation.
This is how Taft set aside the precedents of Alaska and Louisiana.
“It is true that, in the absence of other and countervailing evidence, a law of Congress or a provision in a treaty acquiring territory, declaring an intention to confer political and civil rights on the inhabitants of the new lands as American citizens, may be properly interpreted to mean an incorporation of it into the Union, as in the case of Louisiana and Alaska. This was one of the chief grounds upon which this court placed its conclusion that Alaska had been incorporated in the Union… But Alaska was a very different case from that of Porto Rico. It was an enormous territory, very sparsely settled and offering opportunity for immigration and settlement by American citizens. It was on the American Continent and within easy reach of the then United States. It involved none of the difficulties which incorporation of the Philippines and Porto Rico presents, and one of them is in the very matter of trial by jury.”
What Chief Justice Taft referring to? In this case an American citizen residing in Puerto Rico was denied the right of trial by jury under the Sixth Amendment of the U.S. Constitution because Puerto Ricans, being of Hispanic and not Anglo-Saxon origin, were not prepared for the exercise of an Anglo-Saxon institution of justice such as trial by jury. I am serious. Allow me to quote from Chief Justice Taft:
“The jury system needs citizens trained to the exercise of the responsibilities of jurors. In common-law countries centuries of tradition have prepared a conception of the impartial attitude jurors must assume.”
Then he went on to write:
“We need not dwell on another consideration which requires us not lightly to infer, from acts thus easily explained on other grounds, an intention to incorporate in the Union these distant ocean communities of a different origin and language from those of our continental people.”
What Taft meant can be better understood by his view of the Philippines to which he made reference in his opinion together with Puerto Rico.
Taft, who was once Governor of the Philippine Islands, at one time told President McKinley that “our little brown brothers” would need “fifty or one hundred years” of close supervision “to develop anything resembling Anglo-Saxon political principles and skills.”
And thus, the Supreme Court decided that Congress could determine which parts of the Constitution were applicable to Puerto Rico based on the origin of its inhabitants.
In his book The Supreme Court and Puerto Rico: The Doctrine of Separate and Unequal, U.S. Circuit Court Judge Juan Torruella pointed-out that the U.S. Supreme Court decision in Balzac is the reason why we face a problem with Puerto Rico’s political status today.
If Taft was direct, I am going to speak just as plainly. Today Puerto Rico is considered to be an unincorporated territory of the United States because of a court of segregationist judges could not conceive of a faraway island inhabited by Hispanics, rather than Anglo-Saxons, to be a part of this Nation even if they were American citizens.
And yet there are some Members of Congress who want Puerto Rico to remain an unincorporated territory indefinitely. However, they have not been as direct about their attitudes towards Puerto Ricans as Taft was in his opinion. When the time came to act on a plebiscite bill at the U.S. House of Representatives they placed obstacles on Puerto Rico’s path to statehood —sometimes in the name of fairness to all status options.
With the November 6th plebiscite the time for Congress to act has come again. Rather than questioning if Puerto Rico wants to be admitted into the Union, Members of Congress should be asking themselves what kind of Constitution and citizenship they want the United States to have. Governor Fortuño said it best when he testified before Congress on the Puerto Rico Democracy Act of 2009 and put before them “one simple question: did the framers of our Constitution intend American citizenship to be a source of equal rights?” And we went on to say:
“The action required from Congress will plainly derive from the answer…and one would hope not to find a single member of Congress that says the answer is ‘no’, or that ‘it depends.’
The answer was clearly and unequivocally ‘yes’ when the Civil War was fought to end slavery… ‘yes’ when women were recognized the right to vote… and ‘yes’ when the Supreme Court decided that separate was not equal.
Clearly, the framers of the Constitution did not intend some American citizens to be deprived of rights that other American citizens enjoy. And yet Puerto Rico is a community of American citizens who are deprived of the most basic rights of citizenship in a representative democracy: the right to vote and the right to be represented in the political body that enacts the laws by which they must abide.
Thus, the consequence of not taking action would be to renounce the principles of the Declaration of Independence and to devalue the rights recognized in the Constitution into a rhetorical expression. Is this Nation not dedicated to the proposition that all men are created equal? And are not all citizens guaranteed the equal protection of the laws?”
Puerto Rico’s political status is an anomaly of the U.S. Constitutional system. America should not accept a lesser class of American citizenship for Puerto Ricans as it was once acceptable to have a lesser class of American citizenship for African Americans and women.
The American citizens of Puerto Rico are politically segregated from their counterparts in the States by a wall of inequality built upon the foundation of Balzac v. People of Porto Rico which, by virtue of the Territory Clause, allows Congress to treat the American citizens of Puerto Rico differently.
Contrary to what the U.S. Supreme Court decided in Balzac the Constitution does not provide for a full-fledged American citizenship for Anglo-Saxons in the continental United States while allowing a limited citizenship for island residents of Hispanic origin. America is one nation with one citizenship. As President Barack Obama said: “There’s not a black America, a white America, a Latino America and an Asian America; there’s the United States of America.”
A judicial decision that, departing from law and precedent, was guided by racial prejudice should find no further recognition in American jurisprudence and have no application by our government. Balzac is bad law. The Territory Clause cannot be the Constitution’s escape clause. Puerto Rico is a part of the United States and must be treated as such. And if America is to be true to its values, Congress must tear down that wall of Balzac in the same way that it tore down the wall of Plessy v. Fergurson.
The only way for Congress to do it is to allow Puerto Rico becoming a State.
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