Constitutionalism and the Politics of Accommodation in Multinational Democracies

Jaime Lluch

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN: 9781137288981
• eBook ISBN: 9781137288998
• Topic: Politics & International Relations
• Subtopic: Comparative Politics
• Index: Politics & International Relations

This collection argues that although constitutionalism has traditionally been the primary mechanism for facilitating the mutual accommodation of sub-state and state national societies in plurinational states.

Part I

Constitutionalism and the
Accommodation of National
Diversity

1

Varieties of Territorial Pluralism:
Prospects for the Constitutional
and Political Accommodation
of Puerto Rico in the USA

Jaime Lluch

The demos problem in multinational democracies

In contemporary multinational states, the dominant constitutional and political view in substate national societies¹ (such as Scotland, Quebec, the Basque Country, Catalonia, Northern Ireland, and South Tyrol) challenges contemporary assumptions about the nation-state, namely, the “monistic demos” thesis. The traditional assumptions of contemporary republican theory are disputed in these substate national societies: the notion of a “monistic conception of the nation as the embodiment of a unified demos” is rejected (Tierney 2007: 232; Walker 2008: 521).

Thus, substate political actors present “particular challenges to constitutional form which do not generally arise in uninational states” (Tierney 2007: 236). Their voices often seek “a reconfiguration of the internal constitution of the host state in full recognition of the national pluralism of the state in question” (Tierney 2007: 230). They often demand a “rethinking of orthodox state-centered assumptions concerning both the nature of the demos and the empirical and normative dimensions of constituted authority within plurinational states” (Tierney 2007: 231).

In this chapter, I examine the case of Puerto Rico (“PR”), an unincorporated territory of the USA, and I do so by analyzing it in relation to the rich contemporary literature on the political and constitutional accommodation of national diversity in multinational democracies. There are a number of minority nations in the USA, including North American Indians, Puerto Rico (PR), etc. This chapter seeks to explore the issue of whether the United States can accommodate such substate national societies. Although Puerto Ricans on the island represent a relatively small and geographically isolated population, and have been marginal to the self-identity of the people of the USA, they are perhaps the best example of a stateless nation in the USA. The overwhelming number of people in PR are natives of the island, have Spanish as their native language, a long history that is separate and distinct from that of the USA, a flourishing “national” culture and civil society, and autonomous local political institutions that they fully control, i.e., a degree of local self-government.

Most analysts tend to think of the USA as a polyethnic nation-state, rather than a multinational state, in part because stateless nations within it are a relatively small proportion of the population, geographically isolated, and living under subordinate political arrangements. Yet, Puerto Ricans in Puerto Rico – a part of the USA since 1898 – have a genuinely distinct societal culture. Their homeland was incorporated into the USA by conquest and colonization. At the time of their incorporation, the people of PR “constituted an ongoing societal culture, separated from the anglophone culture. They did not have to re-create their culture in a new land, since their language and historical narratives were already embodied in a full set of social practices and institutions, encompassing all aspects of social life.”² In the case of PR, the USA has followed a quite different strategy from the one used in the case of voluntary (and involuntary) immigrants. PR has been accorded a special status and it is in control of substate governmental institutions within its territorial boundaries.

Puerto Rico as a distinct substate demos

Assertions of nationality “are a particular type of demand, requiring specific forms of recognition and accommodation” (Keating 2001: 2). Unlike other forms of identity politics (such as multiculturalism or feminism), “nationality claims have a special status, carrying with them a more or less explicit assertion of the right to self-determination” (Keating 2001: 3). Thus, “national pluralism … represents a different order of diversity from that of cultural pluralism” (Tierney 2007: 232).

A study of PR’s societal culture and symbols of “national” identity found that the most consistently cited element of the Puerto Rican sense of identity was the Spanish language. Another commonly cited element that respondents felt defined PR and set it apart was the island’s history.³ Most respondents in the study also seemed to possess a strong consciousness of being a distinct society, having a “clear sense of PR as having a defined culture, distinguishable from others by specific traits.” Respondents remarked, for example, that “being Puerto Rican is feeling an identification with a nationality that excludes other nationalities,” and “[we have] a history that defines us as a group separated from the others,” and “We Puerto Ricans are a distinct culture that is well defined.”⁴

“Puerto Ricans of all persuasions are principally cultural nationalists. The overwhelming majority consider themselves Puerto Ricans first and Americans second.”⁵ In fact, “a 1996 poll showed that only 25% of all the people of PR consider the U.S. to be their nation. For the other 75%, their nation is PR.”⁶ Many in PR seem to want to continue in a relation with the US, but also want to preserve and protect their distinctive societal culture.

Congressional attention on the political status options of Puerto Rico has been concentrated in recent years in the periods from 1989–90 period and 1997–98. During 1989–90, three versions of a bill were filed in the US Senate (S.710–S. 712) by Senator Bennett Johnston, chairman of the Committee on Energy and Natural Resources (in charge of PR affairs), which called for a plebiscite sponsored by Congress on the three status formulas, as defined by each party and revised by Congress, the preferred status to become law without further action. The bill eventually died in Committee in 1991.⁷ A similar process was repeated in the period from 1997–98 when “A Bill to Provide a Process Leading to Full Self Government for Puerto Rico” (H.R. 856) was narrowly passed by the US House of Representatives, but was ultimately defeated in the US Senate. The hearings that were conducted during these two attempts to provide for a Congressionally-sponsored mechanism for resolving PR’s political dilemma elicited compelling testimony on the nature of PR’s distinct societal culture, among other matters.

For example, the President of the Ateneo Puertorriqueño, the oldest cultural institution in PR, stated that: “[W]e Puerto Ricans are a nation, independent from the political acceptance that this word also has. Although lacking in sovereignty, PR is a nation inhabited by Puerto Ricans with a history and culture that is common and of its own, with a common native language, Spanish; with a way of being, a particular mentality and folklore, with its own customs and traditions … with its own artistic, musical and literary expression, in existence even before the United States invasion.”⁸ The President of the pro-independence party put it this way in hearings held on 19 March 1997 in Washington, DC: “PR is a distinct, mature, Spanish-speaking, Latin American Caribbean nation … For a nation such as PR, statehood would be a dilution, if not an abdication, of our right to govern ourselves as Puerto Ricans … The problem of PR … is not a problem of disenfranchisement of a minority or an issue of civil rights, as some people believe. It is not a problem of individual rights. It is a problem of national rights, of the inalienable rights of a nation, of a people, to govern themselves.”⁹

Thus, Puerto Rico’s situation as an island people exhibiting the contours of nationhood is radically different from that of other regions that were incorporated into the US nation-state, such as Arizona’s borderlands, where the majority was able to impose its own classifications of ethnicity and race on the newly incorporated peoples (Meeks 2007: 4). Arizona’s borderlands were incorporated into the US, while “defining the cultural and racial boundaries of full citizenship” (Meeks 2007: 10). To understand Puerto Rico, by contrast, it is better to use the language of accommodation and recognition in plurinational polities.

An “unincorporated territory” within the US federal political system

In PR, two axes exist in its political party system: one on national identity and about the constitutional relationship between the substate unit and the central state, and the other on political economy. As in many other stateless nations throughout the world, the former predominates over the latter.

People of all political persuasions, moreover, find the current political arrangement inadequate. As US Senator Ron Wyden declared recently: “the current relationship undermines the United States’ moral standing in the world. For a nation founded on the principles of democracy and the consent of the governed, how much longer can America allow a condition to persist in which nearly four million U.S. citizens do not have a vote in the government that makes the national laws which affect their daily lives?”¹⁰

PR is an unincorporated territory of the US (Rivera Ramos 2001) and it is subject to the plenary powers of the US Congress under the Territory Clause of the US Constitution (Aleinikoff 2002: 76). Article IV, Section 3 of the latter gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” It gives Congress “general and plenary” power with respect to federal territory (Lawson & Sloane 2009), which relates specifically to “full and complete legislative authority over the people of the Territories and all the departments of the territorial governments.”¹¹ “Case law from more than a century ago gives Congress freedom to legislate for at least some territories in a fashion that would violate the Constitution in other contexts” (Lawson & Sloane 2009: 1146). A series of decisions by the Supreme Court, dating from the period 1901–22 and known as the Insular Cases, created the category of “unincorporated territories” and it held that the inhabitants of these areas only enjoyed the protection of those provisions of the Constitution deemed as “fundamental” by the Court, in the absence of Congressional action making other provisions applicable.¹² The Insular Cases are still good law, although no contemporary scholar, of any methodological or political inclination, defends them (Lawson & Sloane 2009: 1146).¹³

The political status quo in PR is known as the Estado Libre Asociado (ELA) (literally, “free associated state”). With it, the USA has sought to accommodate PR’s distinctive societal culture, but in an inferior and subordinate relationship. The ELA was established in 1952, artfully translated into English as “Commonwealth.” Public Law 600 was passed by the US Congress in 1950 and it aimed to provide a regime of limited self-government for the people of PR. After approval by the people in a referendum, Congress ratified the local Constitution, and the newly baptized ELA came into effect on 25 July 1952 (Ramírez Lavandero 1988).

Watts’s typology of federal systems is highly regarded (Watts 2008: 8), and if we accept that “federal political systems” is a broad genus encompassing a whole spectrum of specific non-unitary forms; i.e., species ranging from “quasi-federations,” “federations,” and “confederations,” and beyond. Following Watts, if we see the USA as a federal political system composed of 50 constituent units of the core federation, one federal district, two federacies, three associated states, three unincorporated territories, Native American domestic dependent nations, etc. (Watts 2008: 12), then it is clear that PR is part of this broad federal political system that we call the USA, although it is not part of the federation, nor is it seen as part of the “nation.”

As in PR, substate national movements in multinational polities tend to bifurcate or, at times, trifurcate, into two or three basic political orientations: independence, autonomy, and, oftentimes, pro-federation orientations (Lluch 2010, 2012; forthcoming). Adherence to the movement that wants PR to become a constituent unit of the US federation has grown from 12.9% of the electorate in 1952 to 49.9% in the general elections of 1990, and 52.84% in the 2008 election. Support for independence has declined from 19% of the electorate in 1952 to 3.1% in 1960, 6.4% in 1976, and 3–5% in recent elections. Support for the status quo (the autonomy that we call the ELA), has declined from 67% in 1952 to 45.3% in 1976, and 41.26% in the 2008 election.¹⁴ Puerto Ricans have an inalienable right to independence, and independence is one of its clear alternatives for a better future. For the foreseeable future, however, in light of the current weakness of the pro-independence forces in PR, the island is bound to continue being a part of the US federal political system, and thus its two possible constitutional futures are autonomism or federalism. The question in this chapter is whether the USA could accommodate a genuine substate national society like PR in a non-colonial relationship, either in a non-colonial special status autonomy arrangement, or as a constituent unit of the US federation, under a form of asymmetric federalism (Aleinikoff 2002: 94).

Varieties of territorial pluralism: autonomism and federalism in multinational democracies

As explained in the Introduction to this volume, the accommodationist family of state approaches to diversity has four varieties: centripetalism, multiculturalism, consociationalism, and territorial pluralism. Both centripetalism and consociationalism offer prescriptions that address the dilemmas of deeply divided societies, often with endemic levels of violence. They are inapplicable to Puerto Rico. The USA in part utilizes a strategy of multicultural accommodation, which at times seems to be liberal integrationism in disguise, to manage its ethnic diversity (McGarry et al. 2008: 57). Yet, in the case of Puerto Rico, it has implemented a strategy of territorial pluralism, but with an inadequate special statu...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Figure and Tables
• Preface
• Acknowledgments
• List of Contributors
• Introduction: The Multiple Dimensions of the Politics of Accommodation in Multinational Democracies
• Part I Constitutionalism and the Accommodation of National Diversity
• Part II The Multiple Dimensions of the Politics of Accommodation in Multinational Polities
• Part III Constitutionalism and the Practice of Autonomism, Federalism, and Devolution
• Index