Puerto Rico: The Trials of the Oldest Colony in the World.

• Author: Torruella, Juan R.

By Jose Trias Monge(**) New Haven & London: Yale University Press, 1997. Pp. xii, 228. $30.00.

Juan R. Torruella([dagger])

There is no sorrow above

the loss of a native land

--Euripides, The Medea(1)

??Donde estas, mi corazon

que ya ni latir te siento?(2)

--Juan Antonio Corretjer, Tierra de Mi Corazon(3)

The Spanish-American War of 1898 launched the United States into the role of a global power with overseas imperial ambitions.(4) This one-sided skirmish, which has been referred to as a "splendid little war,"(5) ended with the signing of the Treaty of Paris on December 10, 1898,(6) pursuant to which the United States annexed the Philippine Islands, Puerto Rico, and Guam. Under Article IX of the treaty, the civil rights and political status of the inhabitants of these territories were left to future determination by the United States Congress.(7)

Most Americans have instinctively disregarded, if not outright ignored, this forgotten war and its consequences.(8) Nevertheless, the problems and issues created by the existence of territories that "belong to . . . but are not a part of the United States"(9) not only remain substantially unresolved, but also have become more complex and exacerbated. The Philippines, of course, is no longer in this quandary.(10) In Puerto Rico and Guam, as well as in other more recently acquired territorial jurisdictions, however, close to four million U.S. citizens(11) are subject to Congress's virtually unrestricted plenary powers over these areas pursuant to the Territorial Clause of the Constitution.(12) The very notion that the rights of these citizens are dependent on rules based on the regulation of property seems decidedly outmoded as we approach the twenty-first century.(13) The underlying principle sustaining this outcome--that the Constitution does not follow the flag--has far-reaching consequences affecting mainstream Americans(14) and raises serious questions about the national commitment to democracy, equality, and self-determination.

As we face the 100th anniversary of the American annexation of Puerto Rico, the predominant issue that has been endlessly debated for a century by the local political leadership--the so-called "status question"(15)--has gained new political life on the mainland. Bills have been introduced in Congress to resolve the status conundrum. Under the Young Bill,(16) a congressionally sponsored referendum would be held in which the voters of Puerto Rico would choose between three status alternatives: some form of commonwealth status (yet to be defined), independence, and statehood.(17) It is in this context that Jose Trias Monge has written his political history and blueprint for the island, Puerto Rico: The Trials of the Oldest Colony in the World.(18)

This is a remarkable book written by the former chief justice of the Supreme Court of Puerto Rico,(19) who is not only a noted constitutional scholar,(20) but most significantly was a major actor in the creation of that presently maligned entity, the "Commonwealth of Puerto Rico." Much of the book is a comprehensive review of relevant Puerto Rican history, and thus it is valuable, at the very least, as a concise reference source for those who may otherwise be unfamiliar with the subject. The book's principal worth, however, lies elsewhere, and may be somewhat difficult to appreciate for those who are uninitiated in the Byzantine politics of Puerto Rico.

That Puerto Rico is, and has been since its annexation from Spain in 1898, a colony of the United States, is a central postulate of Trias Monge's book. This conclusion is neither startling nor new,(21) but it is one that is not relished by most Americans, to whom the notion that we are in this day and age a colonial power is not only unpalatable but also is considered to be an outright historic anachronism. Nevertheless, this has been the consistent position of both statehood(22) and independence advocates(23) in Puerto Rico, yet one steadfastly denied(24) by supporters and apologists of the Commonwealth formula since the enactment in 1950 of Public Law 600.(25)

For some time, however, there have been precursory indications of fissures in this initially monolithic pro-Commonwealth posture. A clear forecast of Trias Monge's present stance regarding Puerto Rico's colonial status was provided as far back as 1983, when he stated in his seminal work, Historia Constitucional de Puerto Rico: "Puerto Ricans can be counted as having one of the longest colonial histories among modern people. This is a sad distinction."(26) Nevertheless, the unequivocal posture that Trias Monge expresses toward the Commonwealth's colonial status in Puerto Rico: The Trials of the Oldest Colony in the World is nothing short of startling. Trias Monge, after all, was one of the principal architects of the Commonwealth as well as an active participant in its endeavors during much of the political entity's golden years.(27) His present stance thus negates a considerable part of his life's work, and this may explain why in the later part of the book he attempts to salvage "Commonwealth" status with proposals of doubtful constitutional validity. Most of the proposals Trias Monge offers, in any case, have already been rejected sub silentio by Congress,(28) which by its dedicated inaction is a major culprit in the sorry state of Puerto Rico-United States affairs. The bottom line is that Congress has thus far been reluctant to give up its plenary powers over Puerto Rico.(29)

This book breaks with Trias Monge's past practice in an additional significant way: It is written in English. Although this may appear to be a point of little significance, I believe it is a subtle but nevertheless important one related to Trias Monge's motivations. His writings up to now have been almost exclusively in Spanish,(30) presumably because his principal intended audience was in Puerto Rico. The message reflected in his present book, however, would be largely wasted if directed at such an insular audience, and thus Trias Monge switches to the language of those with the real power over Puerto Rico's destiny. Probably not coincidentally, the book's publication comes as Congress considers passage of the most far-reaching status-related legislation in recent history, the Young Bill.(31)

To better explain the significance of Trias Monge's book, and to highlight its strengths and weaknesses, I divide further commentary into three parts. Part I offers a brief history of the relationship between Congress, the courts, and Puerto Rico, paying special attention to the effects of Public Law 600, which created the current semi-autonomous Puerto Rican government structure. In Part II, I focus more specifically on Trias Monge's book, discussing some aspects of Puerto Rican history that he surprisingly omits, and scrutinizing his proposals. In a brief conclusion, I argue that Puerto Rico requires an answer to the "status question" that serves two goals: finality and equality.

1. HISTORICAL BACKGROUND

   It is almost an aphorism that knowledge of the historical background of contemporary events is necessary to understand them. In the case of a book that deals with Puerto Rico's constitutional and political relationship to the United States, such as Trias Monge's, however, I would go further to state that such antecedents are essential for a balanced appreciation of such a work. In offering historical background, however, I do not intend to displace the more comprehensive treatment of the topic that Trias Monge himself provides. Instead, I limit myself to enumerating and commenting upon certain key events that have occurred since 1898 and that seem immediately relevant.

   We thus find that on intermittent occasions throughout the last one hundred years, Puerto Rico's political status has been the subject of intense congressional debate and scrutiny. Indeed, as a result of Congress's pervasive control over all facets of insular affairs, Puerto Rico's political history can be segmented into a series of distinct epochs, each of which has commenced with the passage of leading legislation, followed by important judicial decisions interpreting them. With few exceptions, it has been the judiciary that has had an overwhelming impact on the fate of the territories.

   1. The Foraker Act and the Insular Cases

      The first period in this long trail began in 1900 with the enactment of the Foraker Act,(32) which provided for the establishment of a civil government for Puerto Rico, including a limited elected legislature, and a governor and supreme court appointed by the President of the United States. The so-called Insular Cases(33) followed, in which the Supreme Court created a distinction between what it labeled "incorporated" and "unincorporated" territories. Incorporated territories were those that, at the time of acquisition, were assured eventual statehood (e.g., Louisiana and Alaska), and in which the Constitution applied ex proprio vigore ("by its own force").(34) Such was not the case with unincorporated territories, for which no commitment of eventual statehood was made at the time of acquisition (e.g., the Philippines, Puerto Rico, and Guam). As to those territories, only those provisions of the Constitution deemed "fundamental" were considered to apply.(35) Thus, through the Insular Cases, the Supreme Court placed its imprimatur on a colonial relationship in which Congress could exercise virtually unchecked power over the unincorporated territories ad infinitum.(36) As Trias Monge points out, this colonial status was decided "by a one-vote margin [in the Court's ruling] . . . reflecting the deep division at the time in the body politic itself."(37)

      The dissents of Chief Justice Fuller and Justice Harlan in the leading Insular Case, Downes v. Bidwell,(38) are worth noting because they accurately forecast Puerto Rico's colonial future. The Chief Justice stated:

      [T]he contention seems to be that if an organized and settled

      ...