Have you ever wondered about the nature and history of Puerto Rico’s relationship with the United States of America? After all, it’s located 1,600 miles beyond Miami and is separated from the U.S. mainland by the likes of Cuba, Bahamas, Turks and Caicos Islands, Haiti and Dominican Republic.
So . . . why is it that we have a Federal law for Puerto Rico’s financial problems? And why is it that we have a U.S. District Court for the District of Puerto Rico? And how is it that the Commonwealth of Puerto Rico and its municipal entity are debtors in the United States Bankruptcy Court for the District of Puerto Rico?
And why is it that they and we have been discussing, for many years now, the possibility of statehood for Puerto Rico?
And have you ever wondered what a 51st state would do to the star pattern on Old Glory?
I have – and without much success in getting a satisfactory answer: until recently.
An Answer from the U.S. Supreme Court
Fortunately, the U.S. Supreme Court comes to the rescue. It provides a history lesson on Puerto Rico in the case of Commonwealth of Puerto Rico v. Sanchez Valle, Supreme Court Case No. 15-108 (Decided June 9, 2016).
The Sanchez Valle case involves a question of double jeopardy in criminal prosecution under the U.S. Constitution. The precise question is this:
–May Puerto Rico and the United States “successively prosecute a single defendant for the same criminal conduct”?
The Supreme Court rules:
–“they may not, because the oldest roots of Puerto Rico’s power to prosecute lie in federal soil.”
To explain this holding, the Supreme Court’s opinion delves into the history and current status of relationships between Puerto Rico and United States of America. Here is a summary of what the Supreme Court’s opinion offers.
1898 – Territorial Beginnings
Puerto Rico becomes a territory of the United States in 1898, “as a result of the Spanish-American War.” The Treaty of Paris concludes that conflict and cedes “the island, then a Spanish colony, to the United States.” It also requires that Congress “determine ‘[t]he civil rights and political status’ of its inhabitants.”
Congress initially establishes a “civil government” for Puerto Rico: the “U. S. President, with the advice and consent of the Senate,” appoints “the governor, supreme court, and upper house of the legislature,“ while “the Puerto Rican people” elect “the lower house themselves.” Federal statutes generally apply back then (and still do today) in Puerto Rico, “but the newly constituted legislature could enact local laws in much the same way as the then-45 States.”
All such Congressional actions involving Puerto Rico, beginning in 1898, are under Article IV, Sec. 3, of the U.S. Constitution, which provides: “The Congress shall have power to . . . make all needful rules and regulations respecting the territory . . . belonging to the United States.”
[Editorial Note: Ironically and coincidentally, 1898 is also the year that Congress enacted The National Bankruptcy Act of 1898, which remains in effect thereafter until Congress adopts the current Bankruptcy Code in 1978.]
“In the ensuing hundred-plus years, the United States and Puerto Rico” forge “a unique political relationship, built on the island’s evolution into a constitutional democracy exercising local self-rule.” Over time, Congress grants “additional autonomy” to Puerto Rico.
1917 – U.S. Citizenship and a Popularly Elected Senate
A newly-enacted federal statute, in 1917, gives U.S. citizenship to the island’s inhabitants and replaces “the upper house of the legislature with a popularly elected senate.”
1947 – Electing Own Governor
A 1947 amendment to the 1917 law empowers “the Puerto Rican people to elect their own governor, a right never before accorded in a U. S. territory.”
1950 – Toward a Puerto Rico Constitution
In 1950, Congress enables Puerto Rico “to embark on the project of constitutional self-governance.” Public Law 600 recognizes “the principle of government by consent,” authorizes “the island’s people to ‘organize a government pursuant to a constitution of their own adoption,’” describes itself as “in the nature of a compact,” and submits “its own terms to an up-or-down referendum of Puerto Rico’s voters.”
According to Public Law 600, “the eventual constitution had to ‘provide a republican form of government’ and ‘include a bill of rights.’” The language and terms of the new constitution “would be hashed out in a constitutional convention.”
“The people of Puerto Rico would be the first to decide, in still another referendum, whether to adopt” the constitution document. But the U.S. Congress “would cast the dispositive vote,” because Public Law 600 declares that the new constitution “would become effective only ‘[u]pon approval by the Congress.’”
1950-1952 – Adopting the New Constitution
“The Puerto Rican people first voted to accept Public Law 600, thereby triggering a constitutional convention.”
Once the constitutional convention “completed its work, the island’s voters ratified the draft constitution.”
“Congress then took its turn” and approved the document with various conditions.
1952 to Present – The New Constitution
The new constitution “became law, in the manner Congress had specified, when the convention formally accepted those conditions and the governor ‘issue[d] a proclamation to that effect’” on July 25, 1952.
The new Constitution creates “a new political entity, the Commonwealth of Puerto Rico—or, in Spanish, Estado Libre Asociado de Puerto Rico.”
The new Puerto Rico Constitution “divides political power into three branches—the ’legislative, judicial and executive,’” like the U.S. Constitution. “And again resonant of American founding principles, the Puerto Rico Constitution describes that tripartite government as ‘republican in form’ and ‘subordinate to the sovereignty of the people of Puerto Rico.’”
“The Commonwealth’s power, the Constitution proclaims, ‘emanates from the people and shall be exercised in accordance with their will, within the terms of the compact agreed upon between the people of Puerto Rico and the United States.’”
2017 – Puerto Rico Statehood Vote
Puerto Ricans, in a nonbinding referendum, vote in 2017 for U.S. Statehood. The vote is 97% affirmative—but with only 23% of citizens voting.
After providing the foregoing history lesson, the Supreme Court’s Sanchez Valle opinion offers this transitional phrase:
“We now leave the lofty sphere of constitutionalism for the grittier precincts of criminal law.”
The facts of the Sanchez Valle case are described, in the opinion, like this:
“Luis Sánchez Valle and Jaime Gómez Vázquez (on separate occasions) each sold a gun to an undercover police officer. Commonwealth prosecutors indicted them for, among other things, selling a firearm without a permit . . . While those charges were pending, federal grand juries indicted Sánchez Valle and Gómez Vázquez, based on the same transactions, for violations of analogous U. S. gun trafficking statutes.”
“Both defendants pleaded guilty to those federal charges. Following their pleas, Sánchez Valle and Gómez Vázquez moved to dismiss the pending Commonwealth charges on double jeopardy grounds.” The trial courts “dismissed the charges,” but the Puerto Rico Court of Appeals “reversed those decisions.” The Supreme Court of Puerto Rico affirmed the dismissals, but with a three-justice dissent. The U.S. Supreme Court “granted certiorari and affirmed the dismissals.”
The Supreme Court’s Sanchez Valle opinion explores intricacies of “the dual-sovereignty carve-out from the Double Jeopardy Clause.” The carve-out means this: an offender cannot be prosecuted twice for the same acts [because of double jeopardy prohibitions], unless the prosecuting entities are “separate sovereigns.” For example, “the States are separate sovereigns from the Federal Government (and from one another)” because the States rely on “authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment.”
All U.S. territories like Puerto Rico (in contrast to the States) derive their powers to prosecute crimes from the United States.
Philippine Islands – An Example and a Contrast
The Supreme Court’s Sanchez Valle opinions (both majority and dissenting) offer up the Philippine Islands as an illustration. The Philippine Islands are a former U. S. territory. Like Puerto Rico, the Philippine Islands are acquired as a territory by the United States in 1898 as a result of the Spanish-American War and its Treaty of Paris.
In a prior double jeopardy case similar to Sanchez Valle, involving Philippine Islands, the U.S. Supreme Court holds that a territory “could not prosecute a defendant for murder after a federal tribunal had acquitted him of the same crime.” The Court reasons that “whereas ‘a State does not derive its powers from the United States,’ a territory does: the Philippine courts ‘exert[ed] all their powers by authority of’ the Federal Government.’”
The territorial history of the Philippine Islands, however, is quite different from that of Puerto Rico, as explained by the Sanchez Valle dissent:
1934 – Independence Authorized
“Congress authorized the President to ‘withdraw and surrender all right of . . . sovereignty’ over the Philippines.”
1946 – Independence Realized
The Treaty of Manila, signed and approved by Congress, “formally recognized the Philippines as an independent, self-governing nation-state.”
The relationship between Puerto Rico and these United States has been lengthy and significant: and it continues to get closer. Perhaps statehood is in the offing? And then we’ll have to figure out what to do with the 51st star on the flag!