DEclaracion de Kenne Macclinton akte el Pleno Latinoamericano
Remarks of
The Honorable Kenneth D. McClintock
Secretary of State of Puerto Rico
CCAA's 36th Annual
Conference on the Caribbean and Central America
Plenary Lunch
November 30, 2012
I
appear before you today, for the last time as Puerto Rico’s Secretary of State
and, no, I will not speak to the recent steps to interconnect the Caribbean into one energy market. Today
I would like to share with you my thoughts on an issue that is of great
importance not only to the United States ,
but has also been of considerable interest to our neighbors in the Caribbean Basin
and the rest of the Hemisphere. Those who will succeed the Governor and me on
January 2, have very different views on the issue I will be addressing.
On
November 6th, Election Day, a plebiscite was held on the preference of voters
in Puerto Rico regarding the Island ’s
political status. Technically, Puerto Rico is a non-incorporated territory of
the United States .
Voters
were asked two questions on a single ballot. First they were asked if they
agreed that Puerto Rico should continue to
have its present form of territorial status which its supporters often refer to
as “commonwealth” or “estado libre asociado”, for short “ela”, in Spanish.
Out
of 1,775,893 voters, 958,915, or 54%, responded “No” —an unequivocal majority. It
is also worth noting that rejection of Puerto Rico ’s
territorial status gathered 69,471 more votes than the Governor-Elect, who
campaigned in favor of a “yes” vote, the option that polled a minority of 46%.
For
the first time in history the American citizens of Puerto Rico voted against
the Island ’s territorial status. This is of
great significance because it has been argued that Puerto Ricans have consented
to it in a 1952 referendum on the Constitution of the Commonwealth of Puerto Rico
in which they were not offered an status choices, as well as in several plebiscites.
The
Declaration of Independence recognizes that governments derive “their just
powers from the consent of the governed." Puerto Rico’s current political
status is clearly unjust because American citizens residing in the Island lack proportional and voting representation in
Congress, as well as participation in the election of the President, and are
subject to unequal treatment by Congress.
Let
us say, for the sake of argument, that citizens can consent to subordination
and inequality. With this plebiscite, the American citizens of Puerto Rico have
withdrawn any plausible consent to Congress ruling over the Island
by virtue of the Territory Clause of the U.S. Constitution.
Let
us go over the second question on the ballot. Regardless of how voters
responded to the first question, they offered the opportunity to express their
preference among the following non-territorial political status options:
statehood, independence and free association. These are the three methods by
which a territory can achieve a full measure self-government as recognized by
the United Nations General Assembly in Resolution 1541 (XV) of 1960.
Out
of the 1,348,686 chore decided to answer the second question, 824,195 or 61.11%
voted for statehood; 74,812 or 5.55% voted for independence and 449,679 or
33.34% voted for free association.
Needless
to say, statehood opponents have questioned the legitimacy of the plebiscite
and the validity of the statehood majority. The time I have available for my
remarks will not allow me to respond to all the attempts made by statehood
opponents to spin the plebiscite results. But the question still remains: How
should The White House and Congress respond?
Before
The White House and Congress begin to analyze the plebiscite results they
should understand how Puerto Rico’s unincorporated status originated and the
effects it has had on the American citizens residing on the Island .
A little legal history lesson will be required.
Puerto
Rico has been a territory of the United States since 1898. In 1901, when
Puerto Ricans were not yet American citizens, the U.S. Supreme Court decided in
Downes v. Bidwell that the exercise
of sovereignty over Puerto Rico following the Spanish-American War did not make
the Island a part of the United
States but only its possession. Please
forgive the tortured wording of Justice Edward Douglass White that I am about
to quote:
“[W]hile
in an international sense Porto Rico was not a foreign country, since it was
subject to the sovereignty of and was owned by the United
States , it was foreign to the United
States in a domestic sense, because the island had not
been incorporated into the United States , but
was merely appurtenant thereto as a possession.”
I
am a history buff and cannot help finding historic connections. Justice White
was born in a Louisiana plantation; fought for the Confederate Army; studied
law at the University of Louisiana now named Tulane, my alma mater; sided with the seven justices whose majority opinion in
Plessy v. Ferguson upheld the
constitutionality of racial segregation in the State of Louisiana in 1896; and
was elevated to Chief Justice of the Supreme Court by President William Howard
Taft. You will later see how all of this is relevant.
After
Congress granted American citizenship to the inhabitants of Puerto Rico in 1917
it was generally understood that the Island had been incorporated into the United States . If Puerto Ricans are natural-born American
citizens, would it not be inescapable that Puerto Rico is a part of the United States ? Ask yourselves: in which country of the
world can a person become an American citizen at birth other than in United States ? And yet, 95 years and millions of births
later, Puerto Rico is still not considered a part of the United
States . Why is that?
In
1922, five years after the granting of citizenship, the U.S. Supreme Court
revisited the question of Puerto Rico ’s
political status in Balzac v. People of Porto Rico.
The
opinion of the Court was written by Chief Justice Taft —the same William Howard
Taft who previously had held the office of President of the United States,
elevated Edward Douglass White to Chief Justice in 1910, and wrote the opinion
of the Court in Lum v. Rice which, in
1927, ruled that the Fourteenth Amendment of the U.S. Constitution did not
prohibit the segregation of Asian and white children in Mississippi state schools
using the infamous decision of Plessy v.
Ferguson as precedent.
Disavowing
Congress and departing from the precedents of Alaska
and the Louisiana Purchase, the Supreme Court, in an act of judicial
legislation, decided that the grant of citizenship to the inhabitants of Puerto Rico did not result in incorporation.
This
is how Taft set aside the precedents of Alaska
and Louisiana .
“It is
true that, in the absence of other and countervailing evidence, a law of
Congress or a provision in a treaty acquiring territory, declaring an intention
to confer political and civil rights on the inhabitants of the new lands as
American citizens, may be properly interpreted to mean an incorporation of it
into the Union, as in the case of Louisiana and Alaska. This was one of the
chief grounds upon which this court placed its conclusion that Alaska had been incorporated in the Union …
But Alaska was a very different case from that
of Porto Rico. It was an enormous territory, very sparsely settled and offering
opportunity for immigration and settlement by American citizens. It was on the
American Continent and within easy reach of the then United
States . It involved none of the difficulties which incorporation
of the Philippines and Porto Rico presents,
and one of them is in the very matter of trial by jury.”
What
Chief Justice Taft referring to? In this case an American citizen residing in Puerto Rico was denied the right of trial by jury under
the Sixth Amendment of the U.S. Constitution because Puerto Ricans, being of
Hispanic and not Anglo-Saxon origin, were not prepared for the exercise of an
Anglo-Saxon institution of justice such as trial by jury. I am serious. Allow
me to quote from Chief Justice Taft:
“The
jury system needs citizens trained to the exercise of the responsibilities of
jurors. In common-law countries centuries of tradition have prepared a
conception of the impartial attitude jurors must assume.”
Then
he went on to write:
“We need
not dwell on another consideration which requires us not lightly to infer, from
acts thus easily explained on other grounds, an intention to incorporate in the
Union these distant ocean communities of a different origin and language from
those of our continental people.”
What
Taft meant can be better understood by his view of the Philippines to which he
made reference in his opinion together with Puerto Rico.
Taft,
who was once Governor of the Philippine Islands, at one time told President
McKinley that "our little brown brothers" would need "fifty or
one hundred years" of close supervision "to develop anything
resembling Anglo-Saxon political principles and skills."
And
thus, the Supreme Court decided that Congress could determine which parts of
the Constitution were applicable to Puerto Rico based on the origin of its
inhabitants.
In
his book The Supreme Court and Puerto Rico: The Doctrine of Separate and
Unequal, U.S. Circuit Court Judge Juan Torruella pointed-out that the U.S.
Supreme Court decision in Balzac is the reason why we face a problem
with Puerto Rico’s political status today.
If
Taft was direct, I am going to speak just as plainly. Today Puerto Rico is
considered to be an unincorporated territory of the United States because of a
court of segregationist judges could not conceive of a faraway island inhabited
by Hispanics, rather than Anglo-Saxons, to be a part of this Nation even if
they were American citizens.
And
yet there are some Members of Congress who want Puerto Rico to remain an unincorporated
territory indefinitely. However, they have not been as direct about their
attitudes towards Puerto Ricans as Taft was in his opinion. When the time came to
act on a plebiscite bill at the U.S. House of Representatives they placed obstacles
on Puerto Rico’s path to statehood —sometimes in the name of fairness to all
status options.
With
the November 6th plebiscite the time for Congress to act has come
again. Rather than questioning if Puerto Rico wants to be admitted into the
Union, Members of Congress should be asking themselves what kind of
Constitution and citizenship they want the United States to have. Governor
Fortuño said it best when he testified
before Congress on the Puerto Rico Democracy Act of 2009 and put before them “one
simple question: did the framers of our Constitution intend American citizenship
to be a source of equal rights?” And we went on to say:
“The
action required from Congress will plainly derive from the answer…and one would
hope not to find a single member of Congress that says the answer is ‘no’, or
that ‘it depends.’
The
answer was clearly and unequivocally ‘yes’ when the Civil War was fought to end
slavery… ‘yes’ when women were recognized the right to vote… and ‘yes’ when the
Supreme Court decided that separate was not equal.
Clearly,
the framers of the Constitution did not intend some American citizens to be
deprived of rights that other American citizens enjoy. And yet Puerto Rico is a
community of American citizens who are deprived of the most basic rights of
citizenship in a representative democracy: the right to vote and the right to
be represented in the political body that enacts the laws by which they must
abide.
Thus,
the consequence of not taking action would be to renounce the principles of the
Declaration of Independence and to devalue the rights recognized in the
Constitution into a rhetorical expression. Is this Nation not dedicated to the
proposition that all men are created equal? And are not all citizens guaranteed
the equal protection of the laws?”
Puerto
Rico’s political status is an anomaly of the U.S. Constitutional system.
America should not accept a lesser class of American citizenship for Puerto
Ricans as it was once acceptable to have a lesser class of American citizenship
for African Americans and women.
The
American citizens of Puerto Rico are politically segregated from their
counterparts in the States by a wall of inequality built upon the foundation of
Balzac v. People of Porto Rico which,
by virtue of the Territory Clause, allows Congress to treat the American
citizens of Puerto Rico differently.
Contrary
to what the U.S. Supreme Court decided in Balzac
the Constitution does not provide for a full-fledged American citizenship for
Anglo-Saxons in the continental United States while allowing a limited
citizenship for island residents of Hispanic origin. America is one nation with
one citizenship. As President Barack Obama said: “There's not a black America,
a white America, a Latino America and an Asian America; there's the United
States of America.''
A
judicial decision that, departing from law and precedent, was guided by racial prejudice
should find no further recognition in American jurisprudence and have no
application by our government. Balzac is
bad law. The Territory Clause cannot be the Constitution’s escape clause.
Puerto Rico is a part of the United States and must be treated as such. And if
America is to be true to its values, Congress must tear down that wall of Balzac in the same way that it tore down
the wall of Plessy v. Fergurson.
The
only way for Congress to do it is to allow Puerto Rico becoming a State.
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