COMMONWEALTH STATUS AND/OR THE BILATERAL COMPACT OF ASSOCIATION: THE SOLUTION TO A MUTUAL PROBLEM ' Luis Vega Ramos University of Puerto Rico Law School INTRODUCTION On the day of Puerto Rico's quincentenial, Washington,D.C. woke up to a message that demanded the clarification and the approval of the bilateral compact of the sovereign Free Associated State of Puerto Rico as a response to the results of the November 14th status plebiscite! The petition's purpose was to put an end to an almost century-long dilemma for Puerto Rico and the United States. Throughout its history, Puerto Rico has been pulled by two opposing forces: cultural self-affirmation and the preservation of political and economic ties to a stronger power. For the United States, the dilemma has centered on whether it is best to maintain Puerto Rico as a perpetual dependency in order to secure its interests in the island or if the costs of this outweigh its benefits. The commonwealth arrangement of 1952 has outlived its usefulness and no longer functions as a solution to the dilemma. The proposed commonwealth definition, that won the plebiscite, called for a "bilateral compact which can only be amended by mutual consent." 3 We must devise a definitive solution that takes into account the historical problems of the relationship and offers solutions to them, and that responds ' Dedicated to Marco A. Rigau and 2,059 other Puerto Ricans who simply had the courage to stand by the principle and be counted.Special thanks to Rail S. Mariani Franco for his invaluable help in preparing this paper. Presented at the Caribbean Studies Association .19th Annual Conference in Yucatan, Mexico, and the Second Annual National Conference on Relations Between the U.S., American Samoa, Guam, Micronesia, Northern Marianas, Puerto Rico and the U.S.V.I., Washington, D.C., May 1994. 2 Tne Washington Post, November 19, 1993, page A54. 'For a translation of the status definitions for the plebiscite see 'Hemisphere", Vol. 5, No. 3, Summer/Fall 1993, page 39. to the aspirations expressed by the Puerto Rican people in the status plebiscite of 1993. I. The Commonwealth of 1952: compact or "monumental hoax"? On December 10, 1898, with the signing of the Treaty of Paris, the United States acquired Puerto Rico as a Spanish-American War booty. Said treaty granted Congress full power to determine the "civil rights and political status" of the island and its inhabitants. 5 Thus, Puerto Rico became a possession of the United States, subject to the sovereign will of Congress In acqbiring Puerto Rico, the Philippines and Guam, the United States had formally become an imperial power. The awkwardness of this situation prompted an intense debate as to the applicability of the Federal Constitution to these new possessions, the limits of congressional power to legislate over them and their ultimate political destiny. For Puerto Rico, it took 24 years, two organic acts (the Foraker and the Jones Acts)6 , and a series of Supreme Court decisions, known as the Insular Cases' , to solve this debate, but in an inconclusive manner!' The solution was concretely stated in Balzac v. Porto Rico 9 , where it was concluded that Puerto Rico belonged to, but was not part of, the United States. Judge Taft stated that while U.S. citizenship was collectively granted in 1917, the island was still an "unincorporated territory" of the United States, in which only the most fundamental guarantees of the Federal 4 Phrase used by Circuit Judge Magruder in Figueroa v. The People of Puerto Rico , 232 F. 2d. 615 (1st Circ., 1956). Article IX, Treaty of Pans of 1898; 30 Stat. 1754, 1759. 6 31 Stat. 77 (1900) and 39 Stat. 951 (1917) respectively. 7 De Lima v. Bidwell 182 US 1 (1901); Downes v. Bidwell, 182 US 244 (1901); Dooley v. United States, 183 US 151 (1901); Pepke v. United States 183 US 176 (1901); Hawaii v. Mankichi, 190 US 197 (1903); Dorr v. United States 195 US 138 (1904); Rassmussen v. US, 197 US 516 (1905). 8 See Judge Black's negative critique of the Insular Cases in Reid v. Covert , 354 US 1 (1957) at 14. 9 258 US 298 (1922). 3 Constitution applied. The Supreme Court deemed the right to a trial by jury not to be a fundamental right and, thus, inapplicable to Puerto Rico. The territorial status of Puerto Rico remained unaltered during the next three decades. It was clear that Congress exercised plenary powers over the island in virtue of the Territorial Clause of the Constitution.'° In 1950, after passage of an amendment to the Jones Act that permitted the popular election of the insular governor" , Congress started a process, with the approval of Public Law 600'2. This process culminated in 1952 with the establishment of the commonwealth of Puerto Rico,which is the current arrangement between the island and the federal government. Public Law 600 stated that it was adopted by Congress "in the nature of a compact, so that the people of Puerto Rico can organize a government pursuant to a constitution of their own adoption." The law went on to describe the process by which the Puerto Rican people would adopt their constitution, which had to be ratified ultimately by the President and the Congress. Finally, the law stated that a series of provisions of the Jones Act would still remain applicable to Puerto Rico, under the name of the Puerto Rican Federal Relations Act of 1950. 14 There are at least two of those provisions that seem to seriously weaken the theory of the existence of a compact binding Congress. Section 1 of the Act reads: That the provisions of this Act shall apply to the Island of Puerto Rico and to the adjacent islands belonging to the United States. 15 This section seems to mean that, notwithstanding the so-called compact, 1 ° Article IV, Section 3, US Constitution. "Elective Governor Act of 1947; 48 U.S.C.A. 737 et seq. 12 64 Stat. 319; 48 U.S.C.A. 731(b) et seq. 13 Id. '4 48 U.S.C.A. 745 et seq. /5 48 U.S.C.A. 731. Li Puerto Rico still remained a possession of the United States. Furthermore, regarding the limits of congressional power over Puerto Rico, Section 9 stated: That the statutory laws of the United States not locally inapplicable except as hereinbef ore or hereinafter otherwise provided, shall have the same force and effect as in the United States, except the internal revenue laws... 18 To fully understand the implications of P.L. 600 and its effect on the constitutional status of Puerto Rico, one must go to its legislative record. It is there that the congressional intent and understanding of the proper meaning of the phrase "in the nature of a compact" can be found." During public hearings held by the House Committee on Public Lands' the Governor and the Resident Commissioner of Puerto Rico, the Department of the Interior and the Department of State of the United States all agreed that passage of this legislation was "a development into self-government on the part of a non- incorporated area of the United States, without virtually changing its position relative to the United States." The Senate's committee report summed up this reasoning by stating that: The measure under consideration would not change Puerto Rico's fundamental political, social and economic relation to the United States."' During the congressional debates, it was clear that with varying degrees of authoritarism, the attitude of congresspersons ranged from blatant imperialism to benevolent paternalism. Only Rep. Marcantonio (D-NY) lifted his voice in protest, 16 Id. "7 Helfeld, David M. "Congressional Intent and Attitude Towards Public Law 600 and the Constitution of the Commonwealth of Puerto Rico", 21 Rev. Jur. UPR 255 (1952). 16 Hearings Before the Committee on Public Lands on H.R. 7674, March 14 and 17, 1950. 19 Statement given by the Governor of Puerto Rico, Luis Munoz Marin, regarding H.R. 7674, March 14, 1950. 20 Report No. 1779, Senate, 81st Congress, 2nd Session. 5 calling the measure a "fraud" to the Puerto Rican people. 2' As could be expected, his accusation went unheard by the rest of Congress. With the legislative interpretation properly in place, Congress approved and the President signed P. L.600 into law. For them it seemed clear that the compact entered into did not alter Puerto Rico's status as a territory. The people of Puerto Rico accepted, in a special referendum, the terms offered by Congress and elected a constitutional convention to elaborate the organic document. Besides adopting it, the convention also adopted a series of resolutions. One of them stated that Puerto Rico had attained "the goal of complete self-government", within "the terms of the compact entered into by mutual consent..." 22 Furthermore, this resolution went on to say that "the people of Puerto Rico reserve the right to propose or accept modifications in terms of its relation with the United States..." 23 These statements of the constitutional convention seem to contradict, if understood in their broadest meaning, both Congress' and President Truman's interpretation of P.L.600. While Congress had stated that these actions had not altered the fundamental status of the island, the elected representatives of the people of Puerto Rico claimed that "the last vestiges of colonialism" had "disappeared in the principle of the Compact." Something or someone had to give, as the constitutional convention soon found out. After being popularly ratified by a 4 to 1 margin, Resident Commissioner Ferncis introduced H.R.