The Constitutionality of Decolonization by Associated Statehood: Puerto Rico's Legal Status Reconsidered

Abstract:     
International and constitutional law arguably collide in the legal arrangement between the United States and Puerto Rico. As a matter of international law, it is unclear that this arrangement conforms to customary international and treaty obligations. As a matter of national law, it is unclear that the Constitution permits an arrangement between Puerto Rico and the United States—short of separation (independence as a State) or integration (admission to the Union as a state)—that could conform to these international obligations. In particular, the Appointments Clause and the Constitution’s voting provisions may well be in tension with contemporary international law relative to Puerto Rico. In this article, we seek, partly through an internal dialogue, to clarify several unacknowledged or underappreciated legal tensions in the U.S.-Puerto Rico relationship and to explore ways to resolve them. One of us adopts a plain-meaning, originalist view of the Constitution, which underscores the arguable constitutional defects in the current U.S.-Puerto Rico relationship. The other does not embrace originalism and therefore would not exclude resolution of the tensions between international and constitutional law by means of constitutional interpretation. We agree, however, that those tensions can no longer be neglected in a State committed to the rule of law and that several of the most troubling can be resolved—with a modest amount of political will and creativity—in a manner that effectively elides the oft-intractable debates in modern constitutional theory: substantive, even if not formal, international legal compliance can be uncontroversially established. Above all, we seek to reframe and facilitate a long-overdue discussion about how to reconcile U.S. international obligations toward Puerto Rico with the Constitution.

Keywords: Puerto Rico, associated state, Appointments Clause, Territories Clause, decolonization, Trusteeship Council, self-determination

JEL Classifications: K19, K33

Accepted Paper Series