So near, yet so far. That is the status of Puerto Rico statehood. Closer to statehood than it has ever been in over a century from its status as a territory of the United States. Called a commonwealth, full rights as American citizens do not exist for Puerto Ricans, who are barred from voting for President and electing Members of Congress. Statehood, however, seems to lack enough political support on what is a bi-partisan issue for both sides of the debate. Actually, it is a three-way matter not only involving continued territorial status or statehood but also includes independence, which has had a difficult history on the island.
Although the Senate will cast the final determining vote on statehood, eyes are on two Representatives from New York, Rep. Nydia Velázquez (D-N.Y.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) Both women of Puerto Rican descent are opposed to statehood and instead support a binding convention on the issue. The two Representatives issued a statement explaining their stance. “For true, legitimate change, Puerto Rico’s status must be resolved from the ground up. Plans for altering the Island’s relationship with the U.S. should not just garner the consent of the Puerto Rican people; they should originate with them. In fact, many in Puerto Rico would view Congress pushing statehood not as an end to colonization, but the culmination of it.”
There have been a half-dozen referendums with varying outcomes, although they were all of an advisory nature and not binding.
Former Puerto Rico Governor Carlos Romero Barcelo has said, “The people know that we do not want the colony anymore, we want equality, especially political equality, because in a democracy what matters is the right to vote and the right to participate on equal terms in the bodies that govern the nation.”
Puerto Ricans voted on ballot measures addressing statehood in 1967, 1993, 1998, 2012, and 2017 with various results.
On July 23, 1967, Puerto Ricans were given three options at the ballot box on the island’s political status; commonwealth, statehood, or independence. Commonwealth won with 60 percent of the vote. Independence received less than one percent.
On November 14, 1993, another vote was held. Former Presidents George H.W. Bush, Ronald Reagan, and Gerald R. Ford participated in the campaign for statehood. President Bill Clinton remained neutral on the referendum. The results were much closer than before, 48.9 percent favored remaining as a commonwealth, while statehood received 46.6 percent of the vote. The vote for independence grew to 4.5 percent.
On December 13, 1998, voters were given five options: commonwealth, free association, statehood, independence, and none of the above. None of the above won with a majority of the vote at 50.5 percent. Statehood received the next highest share of votes at 46.6 percent. Independence dropped to 2.6 percent, with free association receiving 0.3 percent. Puerto Rico’s status as a commonwealth finished last with 0.1 percent of the vote. The None of the above category received so many votes because of controversy over the wording of the referendum.
On November 6, 2012, Puerto Rico held another vote on the island’s territorial status. The referendum was structured into two questions. The first question asked was, “Do you agree that Puerto Rico should continue to have its present form of territorial status?” A majority, 54.3 percent, voted no. The second question asked voters about their preferred status: statehood, free association, or independence. Statehood received a majority of the vote, 61.2 percent. The option of free association received 33.3 percent, and independence climbed to 5.5 percent. Curiously, one-fourth of the voters declined to answer the second question. 1,798,987 people voted on the first question, while only 1,363,854 people voted on the second question.
On June 11, 2017, Puerto Ricans voted again in a referendum which gave voters three options: commonwealth, statehood, and free association. Statehood received 97.2 percent of the vote. The Popular Democratic Party boycotted the election. Turnout was a paltry 22.9 percent, undermining a mandate for statehood.
On November 3, 2020, Puerto Rico held its most recent vote on status. The ballot question simply asked “Should Puerto Rico be immediately admitted into the Union as a state?” A majority of voters, 52 percent, said yes.
The three elected parties fall into different views on statehood. The Popular Democratic Party traditionally has been pro-commonwealth. The New Progressive Party is associated with statehood. The Puerto Rico Independence Party advocates becoming its own nation.
Legal experts debate whether Puerto Rico’s status as a commonwealth has a specific legal meaning apart from territory, or is just stylistic. Under free association status Puerto Rico would become a sovereign nation independent of the Territory Clause of the U.S. Constitution. However, the island would maintain a free and voluntary association with the United States. An agreement of free association would delegate certain powers, typically those regarding military, trade, and currency, to the United States. Free association would put Puerto Rico on the same status as three Pacific nations. The Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau, all former jurisdictions of the Trust Territory of the Pacific Islands, are sovereign nations in free association with the United States.
If Puerto Rico became an independent sovereign nation, the country would develop its own government and economy. Puerto Ricans who are residents of the island would lose United States citizenship.
Governor Pedro Pierluisi has called statehood a matter of “democracy, equality and doing what is right.” However, one thing that is lacking is a public outcry for statehood. If the statehood movement wants to achieve its goal, it needs to connect its struggle to the broader fight for racial and social justice. Many of the injustices we see today in the United States are the direct legacy of colonialism and imperialism. Another significant reason statehood efforts have stalled has been a lack of engagement with Puerto Ricans who oppose the idea, both on the island and in the diaspora. Statehood has divided the populace and has not been a unifying factor.
Senate Majority Leader Charles E. Schumer (D-N.Y.) has announced his opposition to statehood for Puerto Rico. However, Schumer’s opposition is not the kiss of death as statehood has bi-partisan support in the Senate.
In the House of Representatives Nydia Velázquez and Alexandria Ocasio-Cortez have been busy. On March 26 they, and others, introduced House Resolution 279 condemning the Insular Cases. The resolution keeps the Puerto Rico statehood question on the stovetop while the kitchen heats.
“The United States Supreme Court’s decisions in the Insular Cases and the “territorial incorporation doctrine” are contrary to the text and history of the United States Constitution, rest on racial views and stereotypes from the era of Plessy v. Ferguson that have long been rejected, are contrary to our Nation’s most basic constitutional and democratic principles, and should be rejected as having no place in United States constitutional law.”
“Today the United States has 5 populated territories, American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, and the Virgin Islands of the United States, which together have a population of over 3,500,000 residents, equal to the population of the 5 smallest States combined, more than 95 percent of whom are racial or ethnic minorities.”
“Until the Insular Cases were decided in the early 1900s, the Supreme Court long recognized that Congress’ powers over the territories, while broad, were “not absolute and unlimited”, but rather subject “to such restrictions as are expressed in the Constitution.”
“The Supreme Court’s decisions in the Insular Cases broke from its prior precedent to establish a doctrine of territorial incorporation, creating for the first time a distinction between so-called “incorporated” territories, where the United States Constitution applies “in full”, and “unincorporated” territories, where the Constitution applies “only in part”.
“Downes v. Bidwell, the most prominent of the Insular Cases, was delivered by Justice Henry Billings Brown, the author of Plessy v. Ferguson’s doctrine of “separate but equal”, who wrote that America’s newly acquired overseas territories were “inhabited by alien races, differing from us in religion, customs, … and modes of thought”, making it impossible to govern “according to Anglo-Saxon principles.”
“Justice Edward White, who in a separate 3-Justice plurality developed the territorial incorporation doctrine in Downes, expressed concerns over the “evils” of admitting “millions of inhabitants” of “unknown islands, peopled with an uncivilized race”, who he believed would be “absolutely unfit” for citizenship.”
“Justice Harlan, who penned the lone dissent to Plessy v. Ferguson, also wrote a series of powerful dissents to the Insular Cases, declaring in Downes that “[t]he idea that this country may acquire territories anywhere upon the earth, by conquest or treaty, and hold them as mere colonies or provinces—the people inhabiting them to enjoy only such rights as Congress chooses to accord to them—is wholly inconsistent with the spirit and genius, as well as with the words, of the Constitution.”
“Judge Juan Torruella, who served on the United States Court of Appeals for the First Circuit from 1984 until his death in 2020, labeled the territorial incorporation doctrine a “doctrine of separate and unequal”, writing that “the Insular Cases represent classic Plessy v. Ferguson legal doctrine and thought that should be eradicated from present-day constitutional reasoning” because they run contrary to “the most basic precept for which this nation stands: the equality before the law of all its citizens.”
“The Insular Cases are relics of the racial views of an earlier era that have no place in our Nation today.”
Constitutional Law Professor Sanford Levinson has called the Insular Cases “central documents in the history of American racism.”
Puerto Rico statehood is about more than adding a star to the flag, it speaks to the heart of American democracy about equal rights for all.