What is Puerto Rico?

49 Pages Posted: 18 Jan 2018 Last revised: 31 May 2018

See all articles by Samuel Issacharoff

Samuel Issacharoff

New York University School of Law

Alexandra Bursak

New York University School of Law

Russell Rennie

United States Court of Appeals for the Ninth Circuit

Alec Webley

New York Court of Appeals

Date Written: January 17, 2018

Abstract

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.

Suggested Citation

Issacharoff, Samuel and Bursak, Alexandra and Rennie, Russell and Webley, Alec, What is Puerto Rico? (January 17, 2018). NYU School of Law, Public Law Research Paper No. 18-02. Available at SSRN: https://ssrn.com/abstract=3103932 or http://dx.doi.org/10.2139/ssrn.3103932

Samuel Issacharoff (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6580 (Phone)
212-995-3150 (Fax)

Alexandra Bursak

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Russell Rennie

United States Court of Appeals for the Ninth Circuit ( email )

125 South Grand Ave
Pasadena, CA 91105-1621
United States

Alec Webley

New York Court of Appeals ( email )

20 Eagle Street
Albany, NY 12207
United States

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