Nothing New Under the Puerto Rican Sun

LGBT Puerto Rico flag

In the run up to Congress’s vote on the Jones-Shaforth Act — which was signed by President Wilson 99 years ago this month, granting the people of Puerto Rico something unlike U.S. citizenship — Speaker Joseph Cannon averred that such a privilege and responsibility would be wasted on the natives, claiming “the people of Porto Rico have not the slightest conception of self-government.” (“God forbid,” old cigar-smoking Joe went on to say, “that in [Resident Commissioner Luis Muñoz Rivera’s] time or my time, there should be statehood for Puerto Rico as one of the United States.”) Had the less than honorable representative from Illinois argued that the Puerto Ricans possessed only the slightest experience with self-government, he would’ve been much closer to the mark, if not exactly so.

Back in 1897, and under increasing pressure from a greedy-eyed yet high-minded United States, the Spanish prime minister Práxedes Mateo Sagasta granted Puerto Rico the autonomy for which Doctor Betances, Professor Hostos and other members of the Comité Revolucionario de Puerto Rico had been fighting nearly 30 years. Puerto Rico inaugurated its new government on February 9, 1898, marking the first time since the days of the Taíno chieftain Agüeybaná II that the people of Puerto Rico were able to govern themselves. While not ideal (Governor-General Manuel Macías was still selected by Queen María Cristina, after all), the Carta Autonómica did grant Puerto Rico greater representation in the Spanish Cortes and limited Madrid’s authority over strictly insular matters. General elections were held in March of that year, and Puerto Rico’s first partially democratically elected officials (women couldn’t vote) took office on July 17. Eight days later, Major General Nelson Miles, a veteran of the Civil War who went on to capture the wily Geronimo and crush a nationwide railroad workers’ strike, landed on the shores of Guánica along with 1,300 armed purveyors of Yankee democracy.

What the people of Puerto Rico soon discovered, and what they’ve since come to realize (hopefully), is that U.S. democracy feels a lot like U.S. imperialism whenever it’s imposed beyond the “fifty, nifty” states. After U.S. boots hit Puerto Rican soil, President McKinley and his successors worked to supplant old-fashioned Spanish colonialism with a budding, modern U.S. colonialism. There’s a major and important difference between the two: Whereas Spanish colonialism was ruled by a hereditary monarch whose authority Puerto Ricans had no right to question, U.S. colonialism, pursuant to a century’s worth of Supreme Court decisions, is ruled by the unelected members of Congress whose authority Puerto Ricans have no right to question.

It should therefore come as no surprise that, while bans on same-sex marriage have been ruled unconstitutional in the United States by its highest legal arbiters, a federal judge has validated a 2014 ban in Puerto Rico. In his Tuesday decision, the San Juan-born Judge Juan Manuel Pérez Giménez explained that:

the incorporation of fundamental rights to Puerto Rico through the Fourteenth Amendment, unlike the States, is not automatic. See … Mora v. Mejias, 206 F.2d 377 (1st Cir. 1953) (holding that the Fourteenth Amendment is not applicable to Puerto Rico insofar as Puerto Rico is not a federated state within the terms of said Amendment) … Thus, for the reasons that follow, the court concludes that absent an express decision from the Supreme Court of the United States, the Supreme Court of Puerto Rico, Congress or the Puerto Rico Legislature, the fundamental right claimed by the plaintiffs in this case has not been incorporated to Puerto Rico.

That a federal judge would deny the Puerto Rican people any of the rights outlined in the U.S. Constitution signifies “one of the biggest ironies in recent times.” So says Eduardo A. Bhatia, the president of Puerto Rico’s Senate. For my part, however, that the former director of the Puerto Rico Federal Affairs Administration and longtime member of the colonialist Partido Popular Democrático could be that shocked by such a hackneyed ruling strikes me as, if not ironic, then at least tragic. I would’ve expected an experienced colonial go-between such as Bhatia to have learned a thing or two about the futility of Puerto Rican rights — or “sovereignty,” as one jurist laughably termed it during a hearing before the Supreme Court in January (if Puerto Rico has sovereignty, then I’m Ponce de León).

As U.S. judges have reiterated since Downes v. Bidwell, the 1901 Supreme Court case which held that the U.S. Constitution didn’t necessarily follow Old Glory, and as Judge Pérez Giménez was forced to reiterate once more on Tuesday, Puerto Rico isn’t a state but a territory — an “unincorporated” one at that. Unincorporated territories aren’t on a path to statehood and remain under the supreme authority of the U.S. Congress, whose voting members aren’t elected by the residents of unincorporated territories, U.S. citizen or not. (The United States currently has only one incorporated territory: Palmyra Atoll, an uninhabited reef halfway across the Pacific.) After providing a quick summary of the early 20th-century Insular Cases which spelled out the differences between an incorporated and an unincorporated territory, Judge Pérez Giménez cites an earlier case: “Under this doctrine, ‘the Constitution applies in full in incorporated Territories surely destined for statehood but only in part in unincorporated Territories.'”

And the judge isn’t finished:

Even after the enactment of the Foraker Act, … providing for an elected legislature, and a governor and supreme court appointed by the President of the United States, and the Jones Act, … which granted statutory United States citizenship to the people of Puerto Rico and provided for an enhanced, bicameral legislature, Puerto Rico remained an unincorporated territory of the United States to which the Bill of Rights of the Constitution did not apply ex propio vigore. …

Notwithstanding the intense political, judicial and academic debate the island’s territorial status has generated over the years, the fact is that, to date, Puerto Rico remains an unincorporated territory subject to the plenary powers of Congress over the island under the Territorial Clause. More importantly, jurisprudence, tradition and logic teach us that Puerto Rico is not treated as the functional equivalent of a State for purposes of the Fourteenth Amendment. As explained by the Supreme Court, ‘noting the inherent practical difficulties of enforcing all constitutional provisions “always and everywhere,” the Court devised in the Insular Cases a doctrine that allowed it to use its power sparingly and where it would be most needed.’

Judge Pérez Giménez is probably right. But even if he isn’t, and the protections of the 14th Amendment do in fact extend to the people of Puerto Rico, that the issue is a murky one legally says something about how convoluted and oblique the island’s so-called “Commonwealth” status really is (there’s nothing common about the wealth pocketed on the island for the past 117 years). Isn’t Puerto Rico a democracy, with the ability to elect its own leaders, and aren’t its people U.S. citizens, with all the rights and protections bestowed by U.S. law? Cleary it isn’t, and they are not.

Speaking before the House of Representatives in May 1916, in response to the hateful comments made by Speaker Cannon and others, Muñoz Rivera cleverly laid out the reasons why his fellow Puerto Ricans deserved U.S. citizenship, but deserved independence even more:

On the 18th of October 1898, when the flag of this great Republic was unfurled over the fortresses of San Juan, if anyone had said to my countrymen that the united States, the land of liberty, was going to deny their right to form a government of the people, by the people, and for the people of Puerto Rico, my countrymen would have refused to believe such a prophecy, considering it sheer madness. The Puerto Ricans were living at the time under a regime of ample self-government, discussed and voted by the Spanish Cortes. … If Spain, the reactionary monarchy, gave Puerto Rico the home rule which she was enjoying in 1898, what should the United States, the progressive Republic, grant her? …

It is true that my countrymen have asked many times, unanimously, for American citizenship. They asked for it when through the promise of General Miles on his disembarkation in Ponce, … they believed it not only possible but probable, not only probable but certain, that American citizenship was the door by which to enter, not after a period of 100 years nor of 10, but immediately into the fellowship of the American people as a State of the Union. Today they no longer believe it. From this floor the most eminent statesmen have made it clear to them that they must not believe it. And my countrymen, who, precisely the same as yours, have their dignity and self-respect to maintain, refuse to accept a citizenship of an inferior order, a citizenship of the second class, which does not permit them to dispose of their own resources nor to live their own lives nor to send to this Capitol their proportional representation. … Give us statehood and your glorious citizenship will be welcome to us and to our children. If you deny us statehood, we decline your citizenship, frankly, proudly, as befits a people who can be deprived of their civil liberties but who, although deprived of their civil liberties, will preserve their conception of honor, which none can take from them because they bear it in their souls, a moral heritage from their forefathers. …

Give us our independence, and you will stand before humanity as the greatest of the great; that which neither Greece nor Rome nor England ever were, a great creator of new nationalities and a great liberator of oppressed peoples.

Exactly six months later, the lion was dead, and over the following decades Puerto Rico would slip further into the colonizer’s grip. And though the people of Puerto Rico may have had little experience with self-government in 1916 (and still do), they clearly had the slightest conception of it, and of honor, and of liberty. Striking, isn’t it, how little has changed in Puerto Rico since Muñoz Rivera delivered his immortal words? But in case you’re one of those gullible types who believe the 1952 constitution changed anything, I leave you with a brief exchange which took place in January between Justice Sotomayor and Nicole Saharsky, a lawyer representing the Obama administration:

Justice Sotomayor: Before 1952, Congress could veto Puerto Rico’s laws. It has relinquished that right.

Ms. Saharsky: I don’t think that that’s right.

“There is no new thing under the sun,” reads the first book of Ecclesiastes. It’s been doubly true for the sun hanging over Puerto Rico for over a century, and counting…

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Hector Luis Alamo is a Chicago-based writer and the deputy editor at Latino Rebels. You can connect with him @HectorLuisAlamo.

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