What is Puerto Rico?

Brian Balogh: Today in our show we’ll look at the history of Puerto Rico and the United States. We’ll talk about how a typo led to the island being misnamed for decades, how Puerto Rican nationalists attempted to assassinate President Truman in 1950, and we’ll discover if Puerto Rico is a nation or a territory on the international sports field.

Nathan Connolly: First, to talk us through the precise constitutional status of the island, I talked to Sam Erman, associate professor of law at the University of Southern California. He told me that the political storm which followed Hurricane Maria had an eerie parallel to the year Puerto Rico first became a U.S. territory.

Sam Erman: It’s striking that the year the United States annexed Puerto Rico, the island was hit by a massive hurricane, and afterwards U.S. officials talked about how the people were going to starve as a result. There was a need for immediate aid. One of the things they talked about was how there was a need to create markets so that Puerto Ricans would be able to sell their goods and create the kind of industry on the island that would allow them to pull through the crisis and eventually to become a self-sustaining and even potentially wealthy island. That did not happen. For the next decade there was a general failure to alleviate the grinding poverty in Puerto Rico.

Sam Erman: What we’re seeing now is another hurricane has hit, and hurricanes have immediate bad effects, but then the recoveries are much more political problems than they are natural disasters. Puerto Rico has been unable to get the kind of federal aid and attention it needs because it has a political status that doesn’t give it a megaphone in Washington. In an odd way, the hurricane as unmasking what is a colonial status that’s getting in the way of lots of things is an old story for Puerto Rico that’s been made new again.

Nathan Connolly: What is clear is that for most Americans, Puerto Rico’s constitutional status is unclear. A May 2016 YouGov poll found that Americans are confused about whether the people who live there are even American citizens. For the record, Puerto Ricans have been U.S. citizens since 1917, carry a U.S. passport, have free entry to the 50 U.S. states, and they can vote in those states if they establish residency. Erman says that Puerto Rico’s status stems from the moment in history it became part of the U.S.

Sam Erman: Unlike most things in history where we talk about gradual changes over time and trends, when it comes to the question of what status you get as a U.S. territory, it matters almost down to the month when you got into the union. When the United States began, the first territories were organized under the Northwest Ordinance. It expressly looked ahead to those territories becoming states. That was the expectation and the practice for every territory added to the union after that. After the Civil War and during Reconstruction, the expectation remained. Any place that was annexed would eventually become a state.

Sam Erman: When Hawaii was annexed in 1898, that remained the expectation. When Puerto Rico was going to be annexed, into late 1898, that also remained the expectation. Then when the decision was made to annex the Philippines, there was a period of rapid constitutional innovation. The key takeaway from it was the invention of a new kind of territory, the unincorporated territory, that would not necessarily become a state.

Sam Erman: When the annexation actually went through in early 1899, that group of territories, Guam, the Philippines, and Puerto Rico, were all put into this other box and were not put on the road to statehood. Every territory acquired since then has also been put in that unincorporated territory box, and none of them have become states. Anywhere acquired before 1899 was an incorporated territory that is now a state, and everything else is an unincorporated territory that remains not a state.

Nathan Connolly: What happened in 1898 to make this such a lively debate?

Sam Erman: The United States went to war with Spain. First they annexed Hawaii in order to win the war. Then after they defeated Spain, the United States annexed Guam, Puerto Rico, and the Philippine Islands. What happened essentially was that people panicked when the Philippines were about to be annexed. Lots of Americans were worried about the Philippines, largely for racism reasons. They thought Filipinos would be bad citizens. They wanted to come up with a way to keep Filipinos out of U.S. citizenship and the Philippines from becoming a U.S. state.

Nathan Connolly: This question of citizenship then migrated directly to the Puerto Rico case.

Sam Erman: That’s right. There were about two months were the United States said it was gonna annex Puerto Rico but hadn’t decided on the Philippines. During those two months, everybody speaks as though Puerto Ricans are about to be U.S. citizens and as though Puerto Rico will be a state. Once it’s decided to annex the Philippines, U.S. officials start saying, “Let’s withhold citizenship from Puerto Ricans.”

Nathan Connolly: With the hurricane in 2017, you had a number of surveys go out to assess Americans’ sense of Puerto Rico and Puerto Rican status. According to some of those surveys, the majority of Americans had no idea that Puerto Ricans were actually American citizens. Why has there been so much confusion over the last 100 years on this?

Sam Erman: I think there are several reasons. Puerto Rico is small and doesn’t have a ton of people, and so it doesn’t always get thought of very much. One reason is just inattention. Another reason is that people speak a different language in Puerto Rico. Puerto Ricans are understood to be a distinct ethnic group, differentiated from non-Hispanic whites. Just as we speak of second-class citizenship within the United States, people who are citizens, but in some ways are held at a distance from fully belonging, Puerto Rican citizenship is second-class, and because it’s associated with a place that’s not fully integrated, that can take the form not merely of [impuding 00:14:45] inferiority to Puerto Ricans, but of thinking of them as being more alien.

Nathan Connolly: You have in the Puerto Rican case too where the majority of Puerto Ricans actually live on mainland U.S. territory.

Sam Erman: That’s right. Most people of Puerto Rican descent have used their citizenship to leave the island. They can vote on the mainland as citizens. This creates this interesting situation of layered influence. If you’re a Puerto Rican who lives on the mainland, you can vote for a representative in Congress and you can lobby that representative, and you might lobby that representative about what you or your community needs on the mainland, but also about what the island needs.

Sam Erman: I remember talking to an assistant to the resident commissioner, which is what they call the person they send to Congress to speak for Puerto Rico, even though that person can’t vote. This person basically told me, when Puerto Ricans have problems, they don’t necessarily go to the resident commissioner. Often, the way they’re able to get traction with Congress is to go through the representatives of districts that have a high number of constituents of Puerto Rican descent. That’s been a long strategy. When Puerto Rico is treated particularly badly, then that strategy tends to become more activated. There’s a lot of movement-

Nathan Connolly: Wow.

Sam Erman: … back when the island of Vieques was under navy control and people were worried about environmental damage there. You would see representatives from New York taking this up as a cause. When you treat Puerto Rico badly, you also tend to drive people off the island, and to the extent those people register to vote and do vote, you then can create additional pressure, because these are folks who have very recent memories of the island, and so its fate is gonna be particularly important to them.

Nathan Connolly: When you see the humanitarian crisis in the wake of Hurricane Maria with so many millions without, with so many multitudes without electricity, does that raise new constitutional questions? Will we see this now in terms of Puerto Rico status?

Sam Erman: I think we will. The Supreme Court and the political branches in the United States have long taken an approach towards Puerto Rico of, “Let’s not look too closely at what’s going on.” It’s all working more or less. They have something like democratic governance there. People are something like content with what’s going on, and so let’s not shake things up. With the debt crisis, and especially the hurricane, that sense of letting sleeping dogs lie doesn’t seem nearly as compelling anymore.

Sam Erman: I think you are gonna start seeing people thinking creatively about what to do about status, and because it’s such a constitutional question, this will include litigation. There are several ways this could go. One thing you could do is you could attack the governor of Puerto Rico who is elected and say that’s an officer of the United States who has to be appointed by the president. The point of such an attack might be to reveal that Puerto Rico is still a colony, or you could imagine self-interested actors who are doing it for more narrow concerns, but then having a big collateral impact.

Sam Erman: You could also imagine litigation trying to show that the constitution actually allows some status other than state and territory within the United States, and suggesting that Puerto Rico in fact has sovereignty of some sort, so is sort of like an internal nation. That would be a big constitutional innovation, but of course unincorporated territory was a big innovation that was brought about to meet a crisis. The court is capable of innovating when it feels like it has no other choice.

Nathan Connolly: Sam Erman is an associate professor of law at the University of Southern California.