Congress is currently considering the District of Columbia House Voting Rights Act of 2007 (H.R. 1433), which attempts to address the disenfranchisement of District residents by granting the District representation in the House of Representatives. In a Comment recently published in this Journal, I show that the constitutional arguments supporting H.R. 1433 would also apply to a similar (hypothetical) bill granting House representation to Puerto Rico. In fact, a bill enfranchising Puerto Ricans in the House might even stand on firmer constitutional ground than H.R. 1433. Here, in this Pocket Part Essay, I briefly sketch my Comment’s legal argument and then address the moral desirability and the political difficulty of a bill to grant Puerto Rico representation in the House.

I. Applying the Legal Reasoning of H.R. 1433

The major constitutional obstacle to H.R. 1443 is that the Constitution states that “[t]he House of Representatives shall be composed of Members chosen . . . by the People of the several States,” and the Supreme Court has long held that the District is not a “state.” Advocates of H.R. 1433, however, argue that the expansive language of the Seat of Government Clause, which grants Congress the power “[t]o exercise exclusive Legislation in all Cases whatsoever” over the District, confers upon Congress the constitutional power to enact H.R. 1433.

My Comment demonstrates that the constitutional arguments made in support of H.R. 1433 (and based on the Seat of Government Clause) would also support a bill granting House representation to Puerto Rico. The Territorial Clause, under which Congress legislates for Puerto Rico, is as expansive as the Seat of Government Clause. Commentators have highlighted similarities in the two Clauses’ language and in the breadth of power they give to Congress. Moreover, courts have recognized Congress’s need for flexibility when legislating for the territories and have deferred to congressional actions pursuant to the Territorial Clause even in circumstances in which constitutional limitations might otherwise be insurmountable. Further, both the courts and Congress have treated Puerto Rico as a state for the purposes of myriad constitutional and statutory provisions, ranging from diversity jurisdiction and double jeopardy to the Sherman Act and several civil rights statutes.

Apart from this clear parallel between the two Clauses, I also argue that Puerto Rico’s history, governmental structure, and treatment by the judiciary suggest that a bill granting representation to Puerto Rico might avoid some of H.R. 1433’s most conspicuous constitutional difficulties. First, while the Constitution explicitly mandates the District of Columbia’s creation and permanent disenfranchisement, the evidence suggests that territorial disenfranchisement was meant to be only temporary; the Constitution treats territories as states-in-waiting. Second, unlike the District, Puerto Rico is structurally analogous to a state in virtually every significant aspect except for its lack of federal representation, making its enfranchisement in the House more consistent with the text and structure of the Constitution. Finally, I argue that the Twenty-third Amendment might pose obstacles to H.R. 1433 that would not apply to an analogous bill for Puerto Rico.

My Comment does not claim that either H.R. 1433 or an analogous bill for Puerto Rico would be free from constitutional obstacles. I explicitly recognize in my Comment that important constitutional questions remain, as Christina Burnett and John Fortier argue in their responses. The Comment’s argument is that the constitutional obstacles to a bill enfranchising Puerto Ricans would be no higher—and might perhaps be lower—than the obstacles to H.R. 1433. Constitutional differences aside, however, where I clearly disagree with both Fortier and Burnett is in the normative desirability of House representation without statehood. They demand statehood within the Union or independence from it, while I see great virtue in other, more flexible arrangements.

II. The Need for Flexible Institutional Arrangements

One hundred and eight years after the United States colonized Puerto Rico, the island’s citizens continue to search for a dignified solution to their status of political subordination. Although Puerto Ricans have been U.S. citizens since 1917, they cannot vote in federal elections and they have no say in the enactment, application, and administration of the federal laws and regulations that shape their lives. They are also denied the right to govern themselves without federal intrusion. The need to cure the democratic deficit afflicting Puerto Ricans is paramount. Enfranchising Puerto Ricans in the House would be one way—although certainly not the only way—to address that deficit.

There exists however a great temptation to assume that only two formal arrangements—independence or statehood—would suitably resolve the island’s status. But that temptation disserves Puerto Ricans by denying them the ability to shape new, more flexible solutions that are better adapted to their needs and idiosyncrasies. As T. Alexander Aleinikoff argues, “[d]ecolonization requires new understandings of both powers and rights.”

The current Commonwealth relationship, although insufficient to satisfy Puerto Rico’s democratic aspirations, is grounded on the possibility that flexible and innovative institutional arrangements are possible to resolve Puerto Rico’s colonial status. And Puerto Ricans have consistently voted to retain a Commonwealth-type relationship (albeit one with greater democracy and powers of self-government). In my opinion, Puerto Ricans are torn between the undeniable benefits of a close union with the United States and a deep-seated feeling that their distinct culture should not be dissolved in the American melting pot.

Because Puerto Ricans support a relationship that both assures a strong union with the United States and also maintains local power over local affairs, commentators and legislators are wrong to reject flexible arrangements and to insist only on independence or statehood. By insisting on those two arrangements, commentators disparage Puerto Ricans’ own democratic decisions and perhaps even imply that Puerto Ricans are ignorant of their own best interests.

A bill enfranchising Puerto Rico in the House would provide at least a temporary solution to the island’s democratic deficit, while remaining true to the nuanced relationship with the United States that Puerto Ricans have consistently demanded. Such a solution would continue a status premised on autonomy (which is supported by a majority of Puerto Ricans) rather than annexation (which Puerto Ricans have consistently rejected) and would grant the island a greater degree of democratic representation without sacrificing the economic, social, and cultural benefits of autonomy. A bill enfranchising Puerto Rico in the House might also have much better political chances, both in Puerto Rico and in Washington, than would a proposal for outright statehood.

III. The Political Thicket

However normatively desirable my proposal may be, it would face political resistance from social conservatives in the United States and from statehood advocates in Puerto Rico. There may be little that Puerto Ricans can do to overcome U.S. conservatives’ resistance. But Puerto Ricans can and should seek to defuse statehood advocates’ resistance because my proposal expands the status options available to them, honors their democratic commitment to Commonwealth status, and ultimately stands a better chance of success than a bid for statehood.

In the United States, the same social conservatives who clamor for tighter immigration laws can be expected to raise similar (and similarly strident) objections to House representation for Puerto Ricans. Like many immigrants, Puerto Ricans are culturally and ethnically distinct from mainstream U.S. culture. Indeed, the very fact that Puerto Ricans have so far rejected statehood shows that they balance their pride in U.S. citizenship with their assertion of a distinct cultural identity.

But resistance to my proposal would also arise from another quarter altogether: advocates of Puerto Rican statehood and independence would resist my proposal, as the responses from Christina Burnett and John Fortier show. At first glance, that resistance may seem surprising, especially in regards to statehood supporters—why should those who demand greater representation for Puerto Rico oppose a bill that would grant the island just that? But on reflection, the reasons for their opposition become clear. By resisting innovative solutions, statehood advocates force those Puerto Ricans who desire greater autonomy to choose between two stark options: statehood and independence. By eliminating “enhanced” Commonwealth status from the ballot statehood advocates hope to manufacture the electoral victory that has thus far eluded them. This is in fact the secret ambition of a bill currently before Congress that would hold a federally sanctioned referendum in which Puerto Ricans could choose statehood or independence but not a more democratic and empowered form of Commonwealth status, the option favored by most Puerto Ricans but opposed by statehood advocates like Ms. Burnett.

By insisting on statehood as the only solution to Puerto Rico’s colonial problem, statehood advocates recklessly ignore the political obstacles that statehood would have to overcome. First, a bid for statehood would face resistance from Puerto Ricans, who have repeatedly rejected statehood because they value the benefits and tradeoffs arising from a status relationship based on autonomy. Those benefits are both material (e.g., federal transfers and exemption from federal income taxes) and intangible (e.g., representation in international sport competitions and a sense of independent nationhood). Puerto Ricans have also rejected statehood because they fear the conditions that the mainland might impose—English-only laws, for example. Indeed, statehood appears, to some of those who reject it, to be the worst form of permanent, irreversible colonialism.

Puerto Rican statehood also faces extraordinary resistance from mainland politicians—more resistance, in fact, than my proposal would face. The United States is currently involved in a process of national self-definition, and U.S. social conservatives are likely to resist granting statehood to a people that defines itself as distinct from mainstream U.S. culture. Moreover, the very fact that a clear majority of Puerto Ricans opposes statehood would give even moderate U.S. politicians pause. The United States will not grant statehood to Puerto Rico if it fears creating another Québec or, God forbid, another Northern Ireland.

It is therefore misleading for statehood advocates to hold out for statehood when, at least in the short to medium term, that is not a realistic alternative for Puerto Rico.

Conclusion

The point of my Comment is to show that Congress may have the power, pursuant to the Territorial Clause, to grant Puerto Rico representation in the House. For one hundred and eight years, Congress and the courts have invoked that Clause to deny Puerto Ricans equal rights, to prevent Puerto Ricans from receiving government benefits, and to treat Puerto Rico as a state whenever mainland politicians deem it convenient. Surely Congress may also exercise the Territorial Clause to grant the island the most precious of democratic rights. If Congress were to do so, why should Puerto Rican statehood advocates suggest that the Clause (suddenly) be read narrowly?

The answer to this question is of considerable moment not only for the prospects of my proposal, but also for the future of status alternatives other than statehood. Let’s hope that Congress will honor the democratic will of Puerto Ricans, enabling them to craft status solutions that are adapted to the unique needs of both countries. The people of Puerto Rico deserve solutions that give effect to their collective aspirations; they deserve better than a frame of mind that would needlessly narrow the alternatives at their disposal.

José R. Coleman Tió is a third-year law student at Yale Law School.

Preferred Citation: José R. Coleman Tió, Democracy, Not Statehood: The Case for Puerto Rican Congressmen, 116 Yale L.J. Pocket Part 397 (2007). http://yalelawjournal.org/forum/democracy-not-statehood-the-case-for-puerto-rican-congressmen.