Trump, academics and lawsuits put spotlight on Puerto Rico statehood

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Intramural scholarly debates, President Trump’s comments, and sovereign debt lawsuits do not often overlap. Temporarily, however, those three stars have aligned, and they shine a surprising light on recent arguments for Puerto Rican statehood.

In a recent article, Portland State professor Bruce Gilley writes that he is seeking to rescue Western colonialism from the “bad name” it has received over the past century. He argues that colonialism was “both objectively beneficial and subjectively legitimate” for the colonial subjects in many places. The response has been predictably harsh, leading to the retraction of Gilley’s article by the journal and much debate in faculty lounges about the bounds of editorial responsibility and academic freedom.

{mosads}At the opposite end of the intellectual spectrum, the president’s comments about “shithole” countries (including former colonies like Haiti, of course) have similarly provoked outrage. Commentators have pointed out that one cannot understand the current status of places like Haiti without knowing something about the history of colonialism. In Haiti’s case, that includes being forced to pay 150 million gold francs to French slave owners for the “property” that they lost when the colony became independent in 1791. (The United States played a well-documented and ugly role in Haiti’s struggles as well, including a military occupation from 1915 to 1934.)

And speaking of sovereign debt, many of the nation’s leading lawyers recently flew down to San Juan for a hearing about Puerto Rico’s effort to climb out of its ongoing debt crisis. A New York hedge fund, the owner of a large stock of Puerto Rican debt, has challenged the constitutionality of the federal control board that was put in place last year to essentially run Puerto Rico while it is in crisis. This is a degree of authority that would be unimaginable for a state (call it Illinois) facing a debt crisis. Part of the legal justification for the Puerto Rican control board is that the federal government can pretty much do whatever it wants in Puerto Rico because, in the words of century-old Supreme Court precedent, Puerto Rico belongs to but is not part of the United States.

What do these disparate developments have in common? They all make it harder to ignore the strange legal status of Puerto Rico, which many commentators refer to as a colony of the United States. From the lackluster response to Hurricane Maria, to a recent tax bill that treats Puerto Ricans as foreign competitors, it is not hard to imagine why the island’s political leadership is currently pushing hard for recognition as the 51st state.

As Gov. Ricardo Rosselló put it, “Puerto Ricans want a change from their second-class status that Puerto Ricans have experienced and has been exposed in the path of Hurricane Maria.” That drive, rather than Gilley’s theory that colonialism might have been good for the colonial subjects, should be the focus of a much needed contemporary discussion of how to unwind colonialism, and America’s underappreciated role in establishing and maintaining control over far-flung territories.

Since roughly the middle of the 20th century, international law and practice have effectively given colonies the right of “self-determination.” Most have chosen independence. But not all. Nearly one in six people in the Caribbean are still governed by a distant metropole, whether it be the United States, the Netherlands, or France.

Part of what makes the Gilley debate so frustrating is that some scholars seem to treat the discussion as a matter of historical counterfactuals. For the millions who still live in former colonies, such as Puerto Rico, the question of colonialism’s continuing desirability is not academic. It is a real and current issue.

Under U.S. constitutional law, Puerto Rico is treated as an “unincorporated territory,” a kind of legal limbo invented by the Supreme Court a century ago in a series of decisions called the Insular Cases to keep the people of such foreign lands at arm’s length and, in particular, to ensure that they did not have the right to send representatives to Congress.

One cannot read those cases, nor the political and academic debate surrounding them, without developing a sense of the racist and, yes, colonial mindset of the time. Yet the Supreme Court has allowed the Insular Cases to stand, even as it has corrected other odious constitutional decisions of the time, such as Plessy v. Ferguson, which was written by almost exactly the same lineup of justices who wrote the Insular Cases.

Understanding the historical and political context in which Puerto Rico’s current status was created casts the recent push for Puerto Rican statehood in a new light, not as a request for better treatment, but as a way out of a legally questionable netherworld. The two obvious exits lead to either independence or statehood. But who gets to decide which one?

In a world that formally rejects colonialism and embraces the right of self-determination for former colonies, we think that the answer must be a matter of popular will. Scholarly debates and Trump’s public comments may help focus attention, and lawsuits of financiers may help provide a jurisdictional hook for courts to set the stage, but ultimately the decision should belong to the people of Puerto Rico.

Joseph Blocher and Mitu Gulati are law professors at Duke University and authors of “Puerto Rico and the Right of Accession.”

Tags Americas Constitution Donald Trump Puerto Rico statehood Supreme Court

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