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STATEMENT OF ROBERT J. LAGOMARSINO BEFORE THE COMMITTEE ON RESOURCES U.S. HOUSE OF REPRESENTATIVES REGARDING H.R. 856 MARCH 19, 1997
INTRODUCTION
On January 23, 1997, the Legislature of Puerto Rico adopted Concurrent Resolution 2. This measure called upon the 105th Congress to establish a self-determination process which will enable the Congress and the people of Puerto Rico to complete the decolonization of the territory which began in 1952. It was in 1952 that an earlier joint self-determination process approved by Congress and the people pursuant to U.S. Public Law 600 culminated in establishment of internal constitutional self-government for Puerto Rico. The Chairman of the Resources Committee and all the co-sponsors of H.R. 856 are to be commended for responding in a timely and bipartisan manner to the Legislature's request by introducing this historic legislation on February 27, 1997. I support the bill without reservation, and in my own view every Member of Congress who joins the sponsors of this bill in securing its early approval will be serving the national interest in a very significant way. For far too long Congress acquiesced in the deferral of self-determination for Puerto Rico. I had always hoped we could deliver on the American idea of equality and full self-government for the 3.8 million U.S. citizens of Puerto Rico when I was in Congress. Of course, that could only be accomplished by offering the people of Puerto Rico accurately defined choices between the status quo, statehood or separate nationhood, and then determining if Congress and the people can agree on the terms for implementing the option chosen. While that somehow never seemed possible in the past, I believe H.R. 856 will accomplish this goal. Thus, I welcome the opportunity to submit this statement in support of the measure.
THE MOMENT OF TRUTH FOR THE UNITED STATES AND PUERTO RICO: MORE PERFECT UNION THROUGH STATEHOOD OR AN END TO UNION THROUGH SEPARATE NATIONALITY? In the U.S. system of constitutional federalism, statehood is the most perfect form of political union. For any territory within the sovereignty of the U.S. and having a U.S. citizen population, only statehood constitutes full self-government based on the principle of equality with all other citizens. Short of statehood, the less perfected but next most complete condition of political union is that of an incorporated territory to which the U.S. Constitution and political rights have been extended to the fullest degree possible for a non-state area within U.S. sovereignty. Historically, this is the conventional path to statehood. Unincorporated status with internal self-government under a local constitution, including the "commonwealth" structure of local self-government, is the status which occupies the next lower position in the scheme of political union under the constitution. While the federal constitution applies in full to the states, and incorporated territories can achieve "virtual statehood" through integration into the constitutional process on the broadest level possible, under the territorial clause and the court-invented legal status theory of the Insular Cases an unincorporated territory is integrated into the union in a far more narrow sense. Downes v. Bidwell, 182 U.S. 244 (1904); Dorr v. United States, 195 U.S. 138 (1904). Thus, even where statutory U.S. citizenship is extended and there is elected local government under a constitution or an organic act, only "fundamental rights" under the federal constitution apply of their own force in an unincorporated territory. Balzac v. People of Puerto Rico, 258 U.S. 298 (1922). Otherwise the U.S. Constitution and federal law apply only temporarily to the extent Congress determines in its discretion under the territorial clause. Reid v. Covert, 354 U.S. 1 (1957). These U.S. Supreme Court decisions establish that the unincorporated "commonwealth" relationship is temporary by nature, and disenfranchisement and less-than-equal discriminatory treatment of citizens of the territory is deemed constitutionally permissible. Harris v. Rosario, 446 U.S. 651 (1980). Even in the organized and locally self-governing unincorporated territories, including Puerto Rico, the plenary nature of the territorial clause power reduces the operation and effect of the principles of limited government, national uniformity, and rule of law as practiced in the states. The only more imperfect form of union than that of the unincorporated U.S. territories is that of unorganized possessions (Example: Wake Island). While residents of incorporated and unincorporated territories and possessions can enjoy many of the blessings of American citizenship to the extent Congress determines, including economic benefits and security through various degrees of political union with the United States, only statehood confers a condition of permanent and constitutionally guaranteed equal citizenship and full self-government. Thus, for the population of any territory which wishes to remain within U.S. sovereignty, completion of the process of integration through statehood is the only path to full self-government. The only alternative within the framework of the U.S. Constitution is to continue indefinitely in a less than fully self-governing status, which is plausible only as long as Congress deems that to be consistent with the national interest and the people concerned do not themselves make the choices required to seek a change of status. The only other path to full self-government for the peoples of the unincorporated U.S. territories is to seek though self-determination to achieve equal citizenship and full self-government based on separate sovereignty, nationality and citizenship. The options of separate sovereignty in the form of simple independence or free association are the two forms of full self-government through nationhood recognized under both international and U.S. law. See, Compact of Free Association Act of 1985 (U.S. Public Law 99-239).
UNDERSTANDING THE CONSTITUTIONAL PROCESS FOR SELF-DETERMINATION Obviously, there is a cultural dimension to the process for full and compete decolonization of Puerto Rico. However, the process for sustaining cultural identity and achieving social integration in our nation will continue to be played out through the evolution of American civilization at the cultural level. Without minimizing the importance of the cultural reconciliation that is essential to successful decolonization, it must be recognized that as a political transaction decolonization is accomplished through the legal and constitutional mechanisms by which the inherent sovereignty of our people is established, recognized and exercised. Until the ultimate status of the people of Puerto Rico is resolved through sovereign self-government based on either statehood or separate nationality, the manner in which sovereignty is exercised in the case of Puerto Rico will be dysfunctional to the extent that it is constitutionally incomplete and less than equal. To promote recovery by Puerto Rico and the nation as a whole from the dysfunctional dynamics of the colonial relationship, it is necessary to recognize that in our political economic system prosperity and a higher quality of life must never be taken for granted. Rather, as Ronald Reagan told the General Assembly of the United Nation in 1987, all the things we identify with the "good life" in America are not ours by right, but are the product or results of the rights we have under our constitutional system. These includes equal justice under the law, freedom of expression and conscience, limited government, consent of the governed, rule of law, an ordered scheme of liberty and due process. Once these rights are secured we must exercise them vigorously and meet the responsibilities of citizenship in order to preserve the national interest and pursue individual happiness. In the case of Puerto Rico, however, the full rights of citizenship have not yet been secured, and the residents of Puerto Rico have not yet experienced in their homeland the full responsibilities and rewards of equal citizenship. The conditions that have prevented completion of decolonization in favor of a recognized form of sovereign self-government have been more political and legal than cultural. Full decolonization has been delayed for so long that the failure to resolve the underlying political status issue has become the most problematic element of the overall process of cultural and economic integration as well. In other words, the incomplete political status process is impeding the social, economic and cultural process of decolonization and reconciliation. Thus, in 100 years the people of Puerto Rico and the other peoples of our nation as a whole have developed strong and positive cultural and economics inter-relationships, but the failure to resolve the political status question in a legal and constitutional sense is preventing the achievement of an ultimate social reconciliation which can be sustained through either statehood or separate sovereignty in accordance with the wishes of the people. In order for the people to express their wishes as to which political status will be adopted to sustain their identity as well as their relationship with the U.S., there must be a constitutionally valid process in which the options are defined clearly. That is what H.R. 856 will provide. Thus, rather than focusing here on the cultural dimension of the decolonization process, it is imperative that we examine more closely the legal and constitutional mechanics of the process. For it is through these mechanisms that the people will be empowered to express their will at the political as well as the cultural levels. This is how the true identity of a people is translated through self-determination into full self-government. Definitions of status options that are not realistic or which can not be implemented disempower the people and undermine the decolonization process. That is what happened in 1993, and the following discussion reflects my judgment that H.R. 856 will establish a process that will produce results which both Puerto Rico and the Congress will be able to understand. This will provide the basis for completion of the decolonization process that began with adoption of the local constitution under P.L. 600 in 1952. It is significant, therefore, that, like the provisions of Public Law 600 which established the process for approval of the local constitution in 1952, H.R. 856 would establish a multi-staged process for completing the next -- and final -- phase of decolonization. Thus, H.R. 856 recognizes that until the decolonization process is completed the political union between the U.S and Puerto Rico is defined constitutionally as impermanent, and both of the two parties to the present political relationship retain the right of self-determination with respect to its future. Recognition that there are two parties to the self-determination process -- Congress and the residents of the less than fully self-governing territory -- is entirely different from and contrary to the assertion of a "bilateral" relationship between an "autonomous" Puerto Rico and the U.S. based on an unalterable pact." The notion of a formal and legally binding "bilateralism" between the Congress and an unincorporated territory with the framework of the federal constitution is untenable. Indeed, putting aside for the moment only the cultural bonds which exist after 100 years of close albeit impermanent political union, the U.S. has the sovereign power constitutionally, as well as a right under applicable international law, unilaterally to terminate the relationship at any time in favor of independence for Puerto Rico. Nevertheless, the U.S. clearly intends, prefers and -- in the absence of currently unforeseen circumstances -- is committed to resolution of the status of Puerto Rico through a cooperative self-determination process. Thus, as a legally non-binding but voluntarily assumed obligation consistent with international standards of self-determination recognized by the United States, every Congress and every U.S. President since 1952 has recognized that the current status of Puerto Rico can be terminated in favor of permanent union or separate nationhood on terms approved by Congress and the people of Puerto Rico. As a consequence, only if Puerto Rico exercised the right of self-determination in favor of unilateral action on its part to terminate the relationship without an agreed succession process would the excellent prospects for a very orderly and cooperative process perhaps be changed. In addition to demonstrating that decolonization and a permanent status have not been achieved, the willingness of Congress and the President to recognize an on-going right of self-determination for both parties to the existing temporary form of political union confirms the need to include in any further self-determination process the same multi-staged decision-making mechanism as Congress employed in P.L. 600. For just as Congress recognized in Section 1 of P.L. 600 and must continue to recognize, the principle of consent of the governed applies in this case to both the people of the United States as a whole and to the people of Puerto Rico. It is required, therefore, that in resolving the status of Puerto Rico the Congress must exercise the right of self-determination on behalf of the U.S. citizens in the nation as a whole, while the U.S. citizens of Puerto Rico whose status and relationship with the U.S. will be decided also have a right to self-determination. For as a distinct body politic in an impermanent political union with the United States, the U.S. citizens of Puerto Rico also must have the opportunity to express freely their wishes as to the status of Puerto Rico. Because H.R. 856 is grounded firmly in the historical process through which the people of an unincorporated territory can achieve full self-government through a legitimate process of self-determination, I strongly endorse and support its enactment. Upon approval, it will enable Congress and the people of Puerto Rico to enter the next century on a path to liberty and equality.
SELF-DETERMINATION BASED ON DIGNITY AND MUTUAL RESPECT Within the evolutionary cultural process in our society there can exist many peoples and many nations in the cultural sense. Respect for this ethnic diversity and dignity, cultural pluralism, and transcendence of ethnocentricity in its negative forms is one of the difficult but essential lessons through which any civilization comes of age. The learning of this lesson through conflict and reconciliation, a drama played out in our open society for all the world to see, has been but another of the ways in which the United States of America has been a leader of world civilization in this century. Again, the resolution of Puerto Rico's political status remains the last act in the drama of decolonization and social reconciliation for our citizenry of the territory and the nation as a whole. In addition to the political and social dimensions of this process, economic integration is also an element of the evolving relationship. Luis MuÒoz MarÌn realized that continued political union with the U.S. was in Puerto Rico's economic interest. Whether self-determination leads to statehood or separate nationhood, Puerto Rico would do well to stay with market-oriented reforms and private sector led development which have emerged after years of command economics and government managed markets. Only the market-driven economic model can be sustained without undue dependence on government programs or policies currently at the discretion of Congress -- which didn't prove too reliable in the case of the experimental economics of Section 936. Through strategic economic diversification Puerto Rico will recover from the Section 936 corporate welfare scheme which was the economic engine of the colonial status quo -- perpetuated in the name of the poor for the benefit of the powerful. In this cultural and economic context, the social integration between the people of Puerto Rico and the other peoples of this great nation has been one of the most enriching and rewarding of the major cultural processes which have shaped the American experience as our nation come of age in this century. It is a complex and challenging process, and there have been miscalculations and mistakes made by federal and territorial leaders which have not served well the people of the territory or the nation as a whole. However, in the territory and in the larger nation we have never given up on finding a solution, and while the momentum toward an ultimate status has been slowed at times it has never been broken. Now as the century draws to a close, it is time for the anachronistic political, legal and constitutional relationship between Puerto Rico and the nation as a whole to be brought into alignment with the more evolved social, cultural as well as economic relationships. Thus, as noted above, in drafting legislation to prescribe a self-determination process it is necessary to focus on how to resolve the political, legal and constitutional status of Puerto Rico in both procedural and substantive legal terms, rather than in cultural and ideological terms. Having underscored that point, I also want to note that it has been suggested to me on numerous occasions that there is little which is philosophically resonant about the legal mechanics of the constitutional process for self-determination. The lack of a poetic dimension to the politics of solutions instead of mere protest is something that has been pointed out frequently. I could not disagree more. For in my mind the Declaration of Independence, the Preamble of the U.S. Constitution, and the Preamble to the Constitution of the Commonwealth of Puerto Rico all contain the poetry of freedom. Some people may be more moved or have their passions more aroused by the literature of political alienation and cultural anger over past grievances. However, that kind of vitriolic self-indulgence and ideological solipsism often is a luxury that can be afforded by those who like to taste of fruit of freedom but have never had to pay for it. Perhaps we all need to stop and remember that in this century Puerto Rico's best and bravest have joined the best and bravest from throughout our nation and gone in harm's way so the rest of us can continue to live free. To honor their sacrifice, we have a duty to do the hard and sometimes tedious work of democracy and self-determination within the ordered scheme of liberty under our constitutional documents of freedom. Even if it is not always as glamorous or exhilarating as making pedantic pronouncements or reciting poetry about abstract notions of political philosophy, we owe it to those who saved us from the common enemies of this century -- enemies who sought to enslave us all -- to resolve the status of Puerto Rico -- because that is what those who died would want us to do. So the next time some cultural separatist or ideological elitist condescendingly notes that there are no poems about the constitutional process for resolving the legal and political status of Puerto Rico, we should remember that in liberating strife the blood of Puerto Rican born Americans has mixed with that of Americans of all other backgrounds in the sands of Somalia and the muddy soil of Sicily. Apparently, these heroic people who made everything we have in America possible found the literature in the documents of our democracy inspiration enough to march into the gaping jaws of annihilation to preserve liberty for our common patria-pueblo. You want poetry about the difference between perpetual colonial status and constitutional equality? Have you read the words to the "Star-Spangled Banner" recently? Are you longing to hear the poetic expression of dignity through full participation in democracy? Try listening to a group of kids sing "...God shed His Grace on thee, and crowned thy good with brotherhood, from sea to shining sea..." That does not mean we have never fallen short of that ideal in the past, but it expresses what America -- including Puerto Rico -- has the potential to become if we all take the solemn work of democracy seriously.
COLLAPSE OF THE "UNALTERABLE BILATERAL PACT" DOCTRINE OF COMMONWEALTH
Recognition by Congress in Section 1 of P.L. 600 of the principle of consent was "in the nature of a compact" involved joint consent only with respect to the process for approval of the constitution. When the people voted to approve the terms of P.L. 600 on June 4, 1951, the agreement which was "in the nature of a compact" was that the constitution would be approved in the manner prescribed by P.L. 600. It was an agreement to organize local constitutional self-government through the P.L. 600 procedure to which both parties consented. Contrary to what has been asserted for forty years by those who seek to deny both the U.S and the people of the right to further self-determination, the agreement "in the nature of a compact" related to the process of approval of the constitution by joint consent and did not convert the relationship into a permanent form of union that can be altered only by "mutual consent." Those who espouse that ideological doctrine do not want the people of the U.S. as a whole, or the people of Puerto Rico in their own name and right, to have a choice to change the current status. This attempt to convert the commonwealth structure for local self-government into a political status straight-jacket for Puerto Rico has become an impediment to completion of the decolonization process that began in 1952. The adoption of local constitutional self-government at that time was a historically significant stage in the decolonization process, but it was not intended to be the final stage. Those who argue that the current status is the best that the U.S. and Puerto Rico can do merely usurp the power and diminish the meaning of the local constitution as an instrument through which the continuing right of self-determination can be redeemed. Indeed, adoption of a local constitution in 1952 was historic because it enabled the people of Puerto Rico to act in their own name and right as to the internal affairs of the territory, as well as in legal and political relations with the national government. This, of course, was on the basis of U.S. sovereignty and within the framework of our American system of constitutional federalism, meaning that Congress retained its territorial clause authority and responsibility until the decolonization process commenced in 1952 was fulfilled through statehood or separate nationhood for Puerto Rico. Through the institutions of internal self-government established in 1952 Puerto Ricans were empowered, among other things, freely to express their wishes regarding a permanent and fully self-governing political status. Thus, establishment of the "Commonwealth of Puerto Rico" structure for local constitutional self-government in 1952 was a great democratic self-determination accomplishment, one which afforded the residents of the territory the ability to govern their own internal affairs and achieve an ultimate status consistent with a recognized form of full self-government through informed self-determination. That this decolonization process would be fulfilled in accordance with the U.S. federal constitutional process was entirely consistent with the continuation of U.S. sovereignty, nationality and citizenship in Puerto Rico as provided under the Constitution of the Commonwealth of Puerto Rico approved by Congress and with the consent of the people in 1952. Indeed, in 1953 the U.S. circulated to the General Assembly of the United nations a written legal statement which informed Puerto Rico and that world that under the commonwealth structure of local self-government Puerto Rico was subject to "...compliance with the applicable provisions of the Federal Constitution, the Puerto Rico Federal Relations Act and the acts of Congress authorizing and approving the Constitution [of Puerto Rico], as may be interpreted by judicial decision." On that basis, the U.N. General Assembly accepted the U.S. decision to cease reporting to the U.N. on the status of Puerto Rico. See, G.A. Resolution 748 (VIII), September 27, 1953. The Committee on Resources documented these matters quite thoroughly in House Report 104-713, Part 1, so I will not elaborate further here. However, the attempt of some Puerto Rican leaders and political groups to create "bilateralism" within the U.S. federal system has been perpetrated under a "nation-within-a-nation" interpretation of the commonwealth structure of local constitutional self-government which must fail. That doctrine of an illusory form of bilateralism between the people of Puerto Rico and the larger national community is the product of tortured intellectualism which has been harnessed in service to paternalistic and anti-democratic attitudes. Those who do not trust the people, or do not want them to have a free choice, have used the myth of an "unalterable bilateral pact" to perpetuate their own power and prevent the decolonization process from being fulfilled. Having been involved in the question of Puerto Rico's status for many years as a Member of Congress, I continue to study developments in the relationship with keen interest. My sense is that with the end of the Cold War and the demise of the command economics-social engineering policies epitomized by the Section 936 tax credit provisions, the time for completion of the decolonization process for Puerto Rico finally is at hand. For so many years it seemed that those who sought fulfillment of the promise of self-determination might never overcome the influence of those whose economic and political power was derived from the "invisible" colonialism of the Section 936 tax credit regime. However, the neo-colonialist nature of that political-economic model was revealed when Congress exercised its territorial clause power to unilaterally eliminate Section 936 as one of the pillars of the "unalterable bilateral pact" and "fiscal autonomy" ideology. No one can take any personal pleasure whatsoever in the disillusionment of all those honest and patriotic Puerto Rican born Americans who were misled into believing in the revisionist interpretation of commonwealth. It is no coincidence, though, that the advocates of the mythological version of commonwealth in many cases also profited from it. For those who chose self-interest over self-determination for their own fatherland, the path to redemption and reconciliation is to choose one of the legitimate paths to full self-government as defined in H.R 856. In this regard, I recently was told of the article in El Nuevo DÌa which quoted former Governor Hernandez Colon as comparing Resources Committee Chairman Don Young to the Spanish General Palacio, who was described in the article as a tyrant who inflicted brutality on the people of Puerto Rico. The occasion of the former Governor's remarks was the 107th birthday of Roman Baldotioty de Castro, who espoused autonomy for Puerto Rico. This causes me to ask, who is the real oppressor? Who are the real victims? During the 1996 elections, Mr. Hernandez Colon told the people that the election should be viewed as a referendum on the Young bill, and that the voters should support candidates who stood with the former Governor in defense of the bilateral pact doctrine. By historic margins the voters elected candidates who are willing to roll up their shirt sleeves and work with Congress to forge acceptable self-determination legislation based on the Young bill -- without pandering to those who will not recognize that the "unalterable bilateral pact" doctrine has been discredited ethically as well as politically. Who, then, is seeking social justice and self-determination by the truest course? Who seeks most directly and without device or presupposition to empower the people of Puerto Rico to achieve decolonization? Who accepts the verdict of the people and who resists the democratically expressed will of the voters? It is one of the confirming symptoms of prolonged albeit benevolent colonialism that those who thrived financially or wielded great power under the less than fully self-governing status develop elaborate theories to justify the continuation of that status. Thus, a whole host of lesser known commentators have become the spin doctors of commonwealth, administering almost daily doses of the tortured logic of the bilateral pact theory of "autonomy." What would Luis MuÒoz Marin do if he were alive today? What about Roman Baldorioty de Castro? Would they turn their backs on a U.S. Congressman who thinks it is time for Puerto Rico and Congress to determine if Puerto Rico should become a state on the basis of equality or a nation based on separate sovereignty? Would they insist on a form of "autonomy" that does not protect the rights or the dignity of the people of Puerto Rico? Has "autonomy" as Mr. Hernandez Colon defines it become the enemy of the people's inherent sovereignty and their right to make a choice between equal citizenship or separate nationality? Has the vision of Mr. MuÒoz MarÌn which started the process of decolonization in 1952 been hijacked by those who can not believe the hour has come to fulfill that vision? Are the apologists, protectors and defenders of the accommodations made to colonial realities in the name of "autonomy" in 1952 so completely beguiled by their own rationalizations for the current status that they are resisting completion of the decolonization process now that it is possible to do what could not be done in 1952? Who is really playing the role of Palacio in this more enlightened era? Who seeks to retain power at the expense of liberty? Who is withholding the keys to freedom from the people? Who is telling them that what they have is the best they can hope for? Who is telling them that waiting for the political elite to bestow enhancements is safer for the people than taking control of their own destiny? Who are the victims of the bilateral pact myth? Who was diverted from the path to decolonization by the schizophrenic doctrine that gave the current status one name and meaning in Washington and a different name and meaning in San Juan? The answers to these questions are now self-evident. We all were victims, even as we all were beneficiaries in some degree. However, for the people of Puerto Rico and the nation as a whole the point of diminishing returns on our political, economic and social investment in "commonwealth" was reached even before Section 936 was repealed. It is just as self-evident that statehood, if chosen freely by the people in a legitimate act of self-determination, is not a form of "annexation." Similarly, living under a false doctrine of empowerment which is not recognized or respected by the colonial power or the rest of the world is not "autonomy." Rather, statehood is just as valid, ethical and patriotic a way to sustain the individual and collective dignity and identity of the people of Puerto Rico as separate nationality. The love which people born in Puerto Rico have for patria-pueblo can be expressed through either statehood or nationhood. If the U.S. Congress is ready to recognize that reality, why are some in Puerto Rico unwilling to do so?
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