As Professor Venator-Santiago indicates in his article, “The Jones Act of 1917 was neither the first nor the last law enacted by Congress containing a citizenship provision for Puerto Rico.” That statement is more accurate today than ever. Puerto Rican U.S. citizenship is as contested now as it was in the decade preceding the enactment of the Jones Act. In part, its contention is given by the territorial status of Puerto Rico. However, regardless of the future political status of Puerto Rico, the granting of citizenship to Puerto Ricans in 1917 cemented the permanent and irreversible incorporation of its people into the American polity.
When Centro organized a symposium in anticipation of the centennial of the Jones Act in October of 2015, we did not anticipate the turn of events surrounding the history and implications of granting of U.S. citizenship to Puerto Ricans. It is important to briefly review this context and the ensuing debate about Puerto Rican U.S. citizenship and by implication the political status question.
Last summer, in a span of a few days, the Supreme Court decided two cases that further clarified Puerto Rico’s status as a territory and the demarcation of autonomy or self-government. The first case, indirectly addressing the status question, involved double jeopardy in a criminal prosecution for firearms sales. Prosecutors in Puerto Rico wanted to charge two men who had already pleaded guilty in federal court. The U.S. Supreme Court, with Justice Sonia Sotomayor in the minority, decided against Puerto Rico’s government and by implication reaffirmed Puerto Rico’s status as a territory, such as Guam, American Samoa, and the U.S. Virgin Islands.
In a second case, Commonwealth of Puerto Rico v. Franklin California Tax-Free Trust, the Supreme Court considered whether the Commonwealth government could enact its own bankruptcy law under a local statute. Facing a public debt that analysts estimate to be over $70 billion, the Commonwealth enacted a law allowing public corporations in Puerto Rico to declare bankruptcy and enter into a Puerto Rican court process to restructure their debt. Public corporations account for about $20 billion of the total public debt in Puerto Rico but have not been covered by U.S. bankruptcy laws since 1984 (for reasons that are unclear). The U.S. Supreme Court upheld the decision of the lower court, siding with the bondholders who opposed the Commonwealth’s enactment of the bankruptcy law allowing debt restructuring. As in the first case, again with Justice Sonia Sotomayor in the minority, the U.S. Supreme Court affirmed Congressional authority over bankruptcy proceedings. At the time, this decision was the clearest indication that without Congressional action, such as with the subsequent enactment of PROMESA,[1] Puerto Rico would not have a legal recourse to restructure its public debt.
Clearly, the recent U.S. Supreme Court decisions elucidate any questions that anyone may have about the territorial status of Puerto Rico. These recent decisions by the U.S. Supreme Court and the ongoing economic, fiscal, and succeeding humanitarian crises set up the stage for renewed interest—if that is even possible—on the status options for Puerto Rico, and more specifically for statehood as a permanent solution to the political status.
As was the case in 2012, the government earlier this year enacted a law for a non-binding plebiscite on the status of Puerto Rico. Since the United States invasion in 1898, Congress has debated upwards of status and plebiscitary bills, but has yet to pass legislation providing for a “binding” status plebiscite—a plebiscite in which the status options to choose from and the process toward Congressional endorsement and adoption of the chosen option are clearly delineated. Throughout this period, the Puerto Rican legislature has authorized four non-binding status plebiscites (1967, 1993, 1998, and 2012). The 2017 status plebiscite, a non-binding measure conducted by the Puerto Rican legislature lacking the endorsement of minority political parties as was the case in the 2012 referendum, will be the fifth time that Puerto Ricans vote to seek resolution of the island’s political status.
The narrative in favor of statehood is simple: as U.S. CITIZENS (emphasis added), Puerto Ricans are denied equality as long as Puerto Rico remains a territory. For statehood advocates, statehood for Puerto Rico is “a civil rights issue.”[2] Prominent legal and academic scholars support this view. For Judge Juan R. Torruella (U.S. Court of Appeals for the First Circuit, in this issue), Puerto Ricans born in Puerto Rico, especially those who continue to reside in Puerto Rico, are not truly U.S. citizens in the full constitutional and legal sense. And for Professor Rogers Smith (University of Pennsylvania, in this issue), the Jones Act created a form of U.S. citizenship for Puerto Ricans that is constitutionally “second-class” in all of citizenship’s most important legal dimensions.
Achieving statehood, in this view, is a way not only to bring political equality but also to guarantee U.S. citizenship permanently for Puerto Ricans. Concomitant with this view is that statehood will bring parity in federal funds and thus serve as a catalyst to drive Puerto Rico out of its economic crisis. Whether political opposition to the plebiscite and the way the status options are defined in the legislation delegitimizes the outcome of the upcoming referendum or whether Congress would consider of any relevance the outcome of a “non-binding” process remains to be seen. The important issue to consider is that the concept of citizenship and preserving U.S. citizenship are very much at the core of contemporary political discourses about Puerto Rico and Puerto Ricans.
In this context, the publication of this special issue of the CENTRO Journal is extremely timely to contextualize the history, nature, and implications of Puerto Rican’s U.S. citizenship. From a historical perspective, the authors in this volume debate the reasons the granting of citizenship to Puerto Ricans. It is apparent from this debate that U.S. policymakers favored granting citizenship to Puerto Ricans not for military recruitment or narrow strategic interests generated by the war but for broader rationalities that encompassed supporting U.S. permanence in Puerto Rico and augmenting a “bond" with Puerto Rico. Citizenship was also seeing as solidification of the governance of the territory. As Professor Edgardo Melendez concludes, at the time granting citizenship to Puerto Ricans was not seen [emphasis added] as a step toward the incorporation of Puerto Rico as a territory or as a step toward statehood.[3]
After a century of Puerto Rican U.S. citizenship, it is clear that the main goal of the Jones Act of augmenting a “bond’ with Puerto Rico (and Puerto Ricans, I may add) by granting citizenship has been clearly achieved. For one, according the most recent data from the U.S. Bureau of the Census, two-thirds (66.6%) of Puerto Ricans now reside stateside, and the overwhelming majority of those (70%) were born stateside.[4] And, even in the context of an unprecedented wave of migration from Puerto Rico to the U.S. during the last decade, only a small fraction of six percent of those residing stateside declare that they do not speak English—an indicator of social assimilation or lack thereof. In this context, regardless of the present or future status of Puerto Rico, one can argue that, having acquired U.S. citizenship by birth,[5] for stateside Puerto Ricans citizenship is undoubtedly permanent and irreversible.
Yet, as the ongoing debates about citizenships and the articles on the subject included in this volume testify, the question of whether citizenship is permanent and irreversible for island residents has been called into question. The prevalent doctrine on this subject is summarized on a 1989 letter written by John H. Killian from the Congressional Research Service to Senator Bennett Johnston during the 1989–1991 plebiscitary debates over the future political status of Puerto Rico. In the letter, Killian provided a couple of critical points regarding “Discretion of Congress Respecting Citizenship Status of Puerto Ricans.”[6] In his interpretation of prevailing law, Killian talks about what José Rodríguez Suárez labeled as the “what Congress gives, Congress takes”[7] doctrine in regard to Puerto Rico as a territory.
Killian begins by contending that persons born in Puerto Rico acquired their U.S. citizenship under the terms of the Jones Act of 1917. He then proceeds to argue that the Insular Cases established that Puerto Rico, an unincorporated territory, belonged to, but was not part of the United States. It followed that persons born in Puerto Rico were not born in the United States for purposes of the Birthright Citizenship Clause of the 14th Amendment.
Citing the precedent established in Rogers v. Bellei, 401 U.S. 815 (1971), Killian reasoned, that because Puerto Rico was not located in the United States, persons born in the island were not born or naturalized in the United States and consequently their citizenship was statutory rather than constitutional. Thus, Killian concluded, if Puerto Rico became a sovereign nation, Congress could enact legislation that unilaterally expatriated any person born in Puerto Rico. Stated differently, island-born Puerto Ricans’ citizenship was linked to the island’s political status.
At least three scholars have refuted Killian’s interpretation. All begin by establishing that the Jones Act of 1917, which conferred a naturalized citizenship, was replaced by the Nationality Act of 1940, which extended the rule of jus soli or birthright citizenship to Puerto Rico. According to the Nationality Act of 1940, for citizenship purposes, birth in Puerto Rico was tantamount to birth in the United States. During the 1989–1991 plebiscitary debates, Harvard Law Professor Lawrence H. Tribe argued that the Nationality Act of 1940 treated Puerto Rico as a part of the sovereignty of the United States for the purposes of the Birthright Citizenship Clause of the 14th Amendment.
Alternatively, Professor José Julián Álvarez González, then acting as an advisor to the Puerto Rican Independence Party (PIP), argued that rather than Bellei, Congress should look to the precedent established in Afroyim v. Rusk, 387 U.S. 253 (1967). In Afroyim, the Supreme Court established that once a person was naturalized he or she acquired constitutional protections that limited Congress ability to enact expatriation or denaturalization legislation.
Professor Venator-Santiago’s article in this volume offers a third interpretation. He argues that the legislative history of the Nationality Act of 1940 unequivocally established that the Citizenship Clause of the 14th Amendment was the constitutional source for the Act’s birthright or jus soli citizenship provision. Stated differently, in 1940 Congress extended the Citizenship Clause of the 14th Amendment to Puerto Rico through legislation. Unfortunately, and notwithstanding subsequent interpretations, Killian’s argument has become incorrectly the dominant interpretation informing Federal law and policymakers as well as mainstream scholars.
The revisionist interpretation of constitutional and case law exposed by leading legal and academic scholars supports the interpretation that—whether since 1940 Puerto Ricans acquired citizenship by birthright, or since the U.S. Supreme Court decided in Afroyim v. Rusk that Congress cannot enact expatriation or denaturalization legislation, or because of 14th Amendment protection was extended to Puerto Ricans through the Nationality Act of 1940—Congress does not have the legal authority to extricate citizenship from island-born Puerto Ricans.
So, what are the implications of debunking the “what Congress gives, Congress takes” dogma about Puerto Rican U.S. citizenship from contemporary policy and political debates? For one, it changes a core premise of the political status debate, namely, that statehood is the only way to insure the continuation of Puerto Ricans’ U.S. citizenship. If indeed Puerto Ricans have birthright U.S. citizenship, then it follows that U.S. citizenship cannot be taken from island-born Puerto Ricans residing in Puerto Rico or their children by an act of Congress even if their children are born after a change of political status to other than statehood. In this view, Puerto Rican U.S. citizenship is permanent and irreversible.
Even if we accept the premise that Puerto Rican U.S. citizenship is permanent and irreversible, the questions of inequality of American citizens residing in the territory or of the political status of Puerto Rico continue to be unresolved. But the emphasis in the political discourse shifts from the permanent “bond” between the Puerto Rican people and the United States initiated a century ago with the enactment of the Jones Act, but to other costs and benefits of the political status options for both Puerto Rico and the American people, including all Puerto Ricans.
,[1] The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) was enacted by the United States Congress to establish an oversight board and a process for restructuring public debt in order to mitigate the Puerto Rican government-debt crisis. It was signed into law by President Barack Obama on June 30, 2016.
[2] Javier Colón-Dávila, “A votar por el estatus en junio.” El Nuevo Día, February 4, 2017. http://www.elnuevodia.com/noticias/politica/nota/avotarporelestatusenjunio-2287756/ (accessed February 17, 2017).
[3] Edgardo Meléndez, “Comments on the Jones Act and the Grant of U.S. Citizenship to Puerto Ricans,” CENTRO Journal 29, no. 1 (2017): 36.
[4] American Community Survey, 2015.
[5] “Of course, some Puerto Ricans do have "Fourteenth Amendment citizenship." That is, those who were born in the United States are within the meaning of §1 and are therefore constitutional citizens from birth. Cf. United States v. Wong Kim Ark, 169 U.S. 649 (1898).” Letter from John H. Killian, Senior Specialist American Constitutional Law, the American Law Division,
Congressional Research Service, The Library of Congress, Washington, D.C., to Honorable Bennett Johnston regarding “Discretion of Congress Respecting Citizenship Status of Puerto Ricans,” March 9, 1989.
[6] Letter from John H. Killian, Senior Specialist American Constitutional Law, the American Law Division,
Congressional Research Service, The Library of Congress, Washington, D.C., to Honorable Bennett Johnston regarding “Discretion of Congress Respecting Citizenship Status of Puerto Ricans,” March 9, 1989.
[7] José Rodríguez-Suárez, “Congress Giveth U.S. Citizenship Unto Puerto Ricans, Can Congress Take it Away,” Revista Jurídica U.P.R, 55, (1986): 627
