Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The status of Puerto Rico within the American Union
I strongly recommend a story in today's Boston Globe by Bryan Bender tellingly titled "As its war sacrifices rise, Puerto Rico debates US tie: Some seek more political rights."
The story points out that "[t]he 3.9 million residents of Puerto Rico are losing a disproportionately high number of soldiers in Iraq and Afghanistan -- at least 48, including those who lived in Puerto Rico but signed up for the military on the US mainland." This is leading to renewed calls for Puerto Rican statehood. "Next week, Puerto Rican leaders plan to lobby Congress to act on a recent White House task force that recommends giving Puerto Ricans the chance to decide, through a referendum mandated by Congress, whether they want Puerto Rico to remain a commonwealth or to change its political status. And if Puerto Ricans want a change, the panel recommended, Congress should set up another plebiscite to let them choose full independence or becoming the 51st state."
Needless to say, there would be nothing binding about these votes. It is ultimately up to Congress to decide whether to admit Puerto Rico. The political and quasi-constitutional issues would be enormous: Although Puerto Rico's non-voting delegate to the House of Representatives is a Republican, it is hard to believe that the approximately 7 represenatives that a state would be entitled to wouldn't be largely Democratic (not to mention the two Senators), given the economic needs of what would instantly be the US's poorest state. (This hasn't stopped the Deep South from turning Republican, but that is almost certainly the result of racial and religious politics more than a "rational assessment" that tax cuts for the rich are really the best way to bring economic development to Alabama and Mississippi.) Even more to the point, of course, is the fact that Puerto Rico is largely Spanish-speaking, and any serious move toward Puerto Rican statehood is guaranteed to bring the politics of language to center state, with, I suspect, accompanying acrimony. Could/would Congress condition statehood on adopting English as its official language? Langauge politics played a role in the delayed admission of New Mexico and Arizona, and Utah, notably, had to renounce polygamy before being admitted in 1890. Could/should Congress be so heavy-handed in today's world?
And would Puerto Rico be allowed to declare its independence if rejected for statehood? Can one imagine, for example, an independent Puerto Rico being allowed to establish warm relations with the Chavez government in Venezuela or kicking the US Navy out of its bases there? Taney is Dred Scott argued that the Constitution didn't allow the US to possess long-term colonies; the dissenters in the 1901 Insular Cases embraced this aspect of Dred Scott to protest the acquiescence by the majority in an "imperial vision" of the US that allowed us to become just like Great Britain, France, Germany, and other expansionist powers with their subordinate colonies. Will the US find itself in the position of allowing neither statehood nor independence to Puerto Ricans, whatever may be their wishes because, after all, "we" have our own conception of "our" interests that includes neither possibility.
Puerto Rico, though the world's largest remaining colony--in the specific sense that its residents have no formal rights to participate in the politics of the country that claims sovereignty over it--usually remains way off the radar screen of most Americans (who will undoubtedly be surprised to learn that the island has its own Olympic team, which would presumably be disallowed if it joined the Union). The Globe piece suggests that we could all find ourselves thinking more about Puerto Rico in the future, with significant consequences for the American polity. Posted
by Sandy Levinson [link]
IIRC there's an artillery range down there the military likes. I was tantalized by your brief mention of Insular Cases. It's the basing value of these possessions to a country that wants to be able to project worldwide power. When I lived in Hartford, there was a large PR community that was reputed to be populated by people seeking better social and medical services. I suppose a security deal could be cut that would grant independence but keep the bases. Political stability in that region can get iffy fast. This is an interesting subject. I'd regret seeing PR be homogenized by statehood. Never know how much we'll need a getaway from life here in the States.
One hopes we'd be heavy-handed enough to demand English as the official language. We're already having enough troubles with bilingualism; You want one polity, it really, really helps if the people are capable of speaking to each other.
I was general counsel for a company that had the misfortune to do in Puerto Rico what, in the 50 existing states, would have been a fairly routine series of transactions. It was a nightmare. Their legal system is Third World. Trying to integrate Puerto Rico into the union would be horrific.
I got the impression most Puerto Ricans understood they have the best of both worlds, i.e., U.S. privileges and immunities but no federal income tax. Why would they want to end that? Indeed, my impression is that the Puerto Rico income tax is almost as burdensome as the federal one. Were Puerto Rico to become a state, every tax-paying Puerto Rican would have to emigrate to avoid double taxation.
By all means give them their independence whether they want it or not.