New York University Public Law and Legal Theory Working Papers

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Puerto Rico is suffering through multiple crises. Two are obvious: a financial crisis triggered by the island’s public debts and the humanitarian crisis brought on by Hurricane Maria. One is not: the island’s ongoing crisis of constitutional identity. Like the hurricane, this crisis came from outside the island. Congress, the U.S. Supreme Court, and the Executive Branch have each moved in the last twenty years to undermine the “creative statesmanship” that allowed for Puerto Rico’s self-government with minimal interference from a Federal Government in which the people of Puerto Rico had, and have, no representation. From the point of view of Federal officials, it now appears that statehood, independence, or colonial subjugation are the only constitutionally acceptable options for Puerto Rico. Yet the Federal Government’s formalist absolutism is inconsistent with the text and history of the Federal Constitution—as well as the needs and desires of the U.S. citizens who make up Puerto Rico’s population. A review of the constitutional history of the Territory Clause, including a reexamination of the difficult Insular Cases, reveals the complexity of sovereign relations available within the current Commonwealth relation. Only a resumption of creative statesmanship, of the kind found throughout U.S. history, including in modern treatment of Indian tribes, can provide a satisfactory answer to the question of “What Is Puerto Rico?,” and only a satisfactory answer to that question can promote a lasting recovery from the financial and natural disasters afflicting the island.

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