'Free association' means US Constitution would not be Puerto Rico's supreme law

'Free association' means US Constitution would not be Puerto Rico's supreme law
© Getty Images

In their commentary, “Free association is a way out of the Puerto Rican crisis” (The Hill, Aug. 14), two college professors aptly describe why the anachronistic “commonwealth” regime of territorial government that Congress established for Puerto Rico in 1952 needs to be replaced. But the authors then declare Puerto Rico is a “nation” and propose “free association” as a solution, without defining realities of that status. 

An informed choice to end the era of U.S. sovereignty in Puerto Rico for relations under a bilateral treaty of “free association” cannot be made unilaterally by the governments of the U.S. or Puerto Rico. Rather, “free association” requires 3.2 million U.S. citizens in Puerto Rico who are not represented democratically in the U.S. Congress to consent by means of a democratic act of self-determination. 

A “free association” treaty also requires consent of the U.S. acting through its constitutional process, in which 5.5 million ethnic Puerto Ricans in the states are fully represented at the federal level.   

ADVERTISEMENT

Any “free association” treaty for Puerto Rico must be compatible with the U.S. Constitution and international law recognized by the United States, as well as America’s successful “Compact of Free Association” with the Republic of Palau, Federated States of Micronesia and the Republic of the Marshall Islands. 

The authors acknowledge the “commonwealth” experiment in territorial “autonomy” that includes delegated but revocable sovereign powers and U.S. citizenship rights has failed. But they do not inform readers that the Spanish translation of “commonwealth” under local territorial law is “free association.” 

That matters because the local anti-statehood and anti-independence political party in the territory still favors “autonomy” under American sovereignty with U.S. citizenship. This “blended” co-sovereignty unsustainably tolerates less than equal civil rights and representation at the federal level.

Instead, autonomists propose a local veto power over federal law, rejected by Congress as unconstitutional. That leaves autonomists extolling the option of full civil rights and representation by moving to a state. 

For 70 years, the “autonomists” have called this deeply flawed model of less-perfect union “enhanced commonwealth” in English and “free association” in Spanish. The autonomist party has traded majority party rule, off and on, with the statehood party since 1950.  

ADVERTISEMENT

Meanwhile, local factions advocating the right to full independence never have garnered more than 5 percent of the vote for its political status platform.   

The professors define “free association” as a “non-territorial sovereign relationship.” That’s ambiguous “autonomist” old wine in mislabeled bottles of “enhanced commonwealth” and “free association.”

Real free association is not a power-sharing relationship within a blended sphere of sovereignty and common nationality. It’s an alliance between two separate sovereign nationalities.  

Thus, to de-annex Puerto Rico in favor of independence would mean the U.S. Constitution and federal statutes no longer would be the supreme law of the land in Puerto Rico. Instead, the constitution and laws of the Republic of Puerto Rico would be supreme.

The current statutory citizenship for all persons born in Puerto Rico, as well as statutory naturalization derived from parents who acquired it during the territorial period, would end. There would be no dual citizenship gimmicks as proposed by so-called Puerto Rico “nationalists” who want to retain U.S. nationality.

To satisfy international law decolonization and self-determination standards recognized by the United Nations and the United States, any free association treaty must be terminable at will by either party in favor of absolute independence. 

That is the prerequisite for associated state U.N. membership, because it prevents either party from having a veto power over exercise of the right to independence. This also impedes undue dependence by the associated state or undue control by the metropolitan state.      

The free association treaties with three Pacific island micro-states reflect historically unique interrelationships not present in the Puerto Rico-U.S. relations. Those islands were never under U.S. sovereignty, never had U.S. citizenship, and were administered by the U.S. under a U.N. Security Council trusteeship. 

In 1952, overwhelming majority rule ratifying the current constitution of Puerto Rico confirmed U.S. citizenship as “paramount.” Accordingly, the principle of self-determination precludes de-annexation without enabling the 3.2 million U.S. citizens of the territory to express their will whether full integration through statehood best redeems the aspirations of the people.  

Howard L. Hills was lead counsel in the Executive Office of the President and National Security Council on U.S. territorial status law from 1982 to 1989.