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Puerto Rico: Cultural Nation, American Colony Michigan Journal of Race and Law Volume 6 2000 Puerto Rico: Cultural Nation, American Colony Pedro A. Malavet University of Florida Fredric G. Levin College of Law Follow this and additional works at: https://repository.law.umich.edu/mjrl Part of the Civil Rights and Discrimination Commons, Law and Race Commons, Legal History Commons, and the Rule of Law Commons Recommended Citation Pedro A. Malavet, Puerto Rico: Cultural Nation, American Colony, 6 MICH. J. RACE & L. 1 (2000). Available at: https://repository.law.umich.edu/mjrl/vol6/iss1/1 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Race and Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. PUERTO RICO: CULTURAL NATION, AMERICAN COLONY' Pedro A. Malavet* IN TR O D U CTIO N ................................................................ .... 2 I. HISTORICAL DEVELOPMENT OF THE LEGAL RELATIONSHIP BETWEEN PUERTO RICO AND THE ESTADOS UNIDOS DE N ORTEAM fRICA (U.S.A.) ............................................................ 11 A. Historical Antecedents: The First Colony ............................... 12 B. The Second Colony: Development of the United States- Puerto Rico Legal Regime ................................................... 21 1. Booty of the Spanish-American War ............................. 21 2. Legal Consequences of the New Colony ....................... 23 3. The Current Legal Regime: The Estado Libre Asociado de Puerto Rico (The "Commonwealth" of Puerto R ico) .............................................................. 32 C. Consequences of the United States-Puerto Rico Colonial Regime ...... 41 II. LA TIERRA DE BORNQUEN: FLUIDITY IN THE CONSTRUCTION OF PUERTO RICAN CULTURAL NATIONHOOD .................................. 45 A. Nationhood: Reality is in PopularCulture .............................. 48 1. The Importance of the Puerto Rican Cultural Narrative of La Naci6n Puertorriqueha(The Puerto Rican Nation) ...... 48 2. An Anti-Essentialist View of Puerto Rican Cultural N ationhood .................................................................. 55 3. M sica Popular Puertorriqueia(Puerto Rican Popular M usic) .............................................................. 61 B . Cultural Survival ............................................................. 67 1. Americanization: Cultural Imperialism ........................... 67 2. Political Repression: Los Subversivos ............................... 71 III. dQuE sERA DE BORfNQUEN?: REFORMING LIBERAL CITIZENSHIP ....... 75 A. The Failure of Liberal Citizenship .......................................... 76 B. A Proposal to Reconstruct Puerto Rican Citizenship Through a Reformed Liberalism ...................................................... 87 t Copyright 2000 by Pedro A. Malavet. All rights reserved. * Assistant Professor, the University of Florida Fredric G. Levin College of Law. JD and LLM, Georgetown University Law Center. Professor Malavet has been an Ad- junct Professor of law at Georgetown and at the Pontifical Catholic University of Puerto Rico. Although I am solely responsible for any shortcomings found herein, this Article benefited from the selfless assistance of many colleagues. I wish to thank Berta Esperanza Hemindez-Truyol for her indefatigable support in the writing of this Article. Juan Perea, Michael Seigel, Kevin R. Johnson, Francis McCoy, Christopher Slobogin and Guadalupe Luna provided detailed comments. My research assistant, Jos6 Garcia, did excellent work on this Article. MichiganJournal of Race & Law [VOL. 6:1 IV. A FRAMEWORK FOR LEGAL REFORM ............................................. 96 A. The End of "Commonwealth" and the Pre/requisite of Independence............................................................... 96 B. The Post-Colonial Status Alternatives: Re/defining Ciudadania Puertorriquefia (Puerto Rican Citizenship) .............................. 98 1. Independence ................................................................ 98 2. Non-Assimilationist Statehood ...................................... 99 3. Non-Assimilationist, Bilateral Free Association ............... 99 CONCLUSION: ESTE SON QUE TRAIGO YO .......................... 103 Status politics have always impeded the realization of the ideals of life and civilization [in Puerto Rico]. -Luis Mufioz Marin INTRODUCTION Early in the process of American colonization following the Span- ish-American War, United States General George Davis said that Puerto Rico, "unlike ... many other republics, never has been, is not, and probably never will be free."' History has so far proved the General right. As a matter of law, Puerto Rico has been a colony for an uninter- rupted period of over five hundred years. In modem times, colonialism-the status of a polity with a definable territory that lacks sovereignty2 because legal/political authority is exercised by a peoples distinguishable from the inhabitants of the colonized region 3 -is the only 1. Brigadier General George W. Davis, who was Military Governor of Puerto Rico, made the statement while opposing any initiative that would have given Puerto Rico independence. AIDA NEGR6N DE MONTILLA, LA AMERICANIZACI6N DE PUERTO RICO Y EL SISTEMA DE INSTRuccI6N P(1BLICA 1900/1930 17 (1977). 2. Sovereignty is used here in its positivistic sense to refer to the authority to im- pose law within the national territory. 3. Legally speaking, Puerto Rico is a colony, as professor Ediberto Rotnin explains: The term "colony" is generally defined by the international community through the "salt water theory" of colonialism. Under this theory a ter- ritory and its population are considered a colony if a body of salt water separates it from the ruling country. The U.N. effectively accepted the salt water theory when the General Assembly adopted Resolution 1541, which defined a dependent territory as a "territory which is geographi- cally separate and is distinct ethnically and/or culturally from the country administrating it. Unlike independent states, colonies are possessions of the parent country, having no separate statehood or sovereignty. "'The parent state alone ...possesses [the] international personality and has the capacity to exer- FALL 2000] Puerto Rico: Cultural Nation, American Colony legal status that the isla (island) has known. This Article posits that Puerto Rico's colonial status-particularly its intrinsic legal and social constructs of second-class citizenship for Puerto Ricans-is incompatible with contemporary law or a sensible theory ofjustice and morality.4 Geographically, Puerto Rico is a group of islands5 with a territory bordered by the Atlantic Ocean and Caribbean Sea. The isla is a political entity with a local government elected by the Puerto Ricans who reside on the island. Most significantly for purposes of this Article, Puerto6 Rico retains a national consciousness, as reflected in its popular culture. To be sure, Puerto Ricans' strong cultural nationhood contrasts with their lack of legal sovereignty. Puerto Rico legally belongs to the United States7 but has not been fully incorporated into it." The cise international rights and duties.'" The parent state may, nonetheless, grant or bestow upon its colony a degree of internal autonomy and even grant autonomy over certain external affairs. These rights, however, are generally considered revocable at the discretion of the parent state. Ediberto Roman, Empire Forgotten: The United States's Colonization of Puerto Rico, 42 VILL. L. REV. 1119, 1137-38 (1997) (citations omitted). 4. As discussed infra Part I.B., the United States has used statutes and judicial opin- ions to construct second-class citizenship for the Puerto Ricans in Puerto Rico by giving them fewer legal protections and benefits than are allocated to other United States citi- zens. At the same time, the dominant United States culture socially constructs the Puerto Ricans as second-class peoples, thus creating another form of second-class citizenship, as discussed in Part I.C. below. The United States now faces a paradox. Congress has unfettered legal authority to regulate the territory. See infra Part I.B. But there are theo- retical and moral limitations on the exercise of that power, which are aptly captured in the following statement: "I care not if we have a right to make them miserable, have we not an interest to make them happy." RAYMOND CARR, PUERTO Rico: A COLONIAL EXPERIMENT 1 (1984). 5. Unless otherwise expressly indicated, references to the isla or island should be read as synonymous with all the Puerto Rican islands. Puerto Rico is composed of several islands. However, it is generally referred to as the "Isla del Encanto" (The Enchanted Island, or the Isle of Enchantment), or simply as the "island." The Islands of Puerto Rico are the main island, known as Puerto Rico, and a series of smaller islands, including, but not limited to, Vieques, Culebra, Mona, and Monito. See 48 U.S.C. § 731 (1999) ("The provisions of this chapter [48 U.S.C. § 731 et seq.] shall apply to the island of Puerto Rico and to the adjacent islands belonging to the United States and waters of those islands; and the name Puerto Rico as used in this chapter, shall be held to include not only the island of that name, but all the adjacent islands as aforesaid.") 6. Professor Romin concludes that, because of the Puerto Ricans'
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