America's Colony

The Political and Cultural Conflict between the United States and Puerto Rico

Pedro A Malavet

• Publisher: NYU Press
• Year: 2004
• Print ISBN: 9780814757413
• eBook ISBN: 9780814795606
• Topic: History
• Subtopic: North American History
• Index: History

The precise legal nature of the relationship between the United States and the people of Puerto Rico was not explicitly determined in 1898 when the Treaty of Paris transferred sovereignty over Puerto Rico from Spain to the United States. Since then, many court cases, beginning in 1901, have been instrumental in defining this delicate relationship.
While the legislation has clearly established the nonexistence of Puerto Rican nationhood and lack of independent Puerto Rican citizenship, the debate over Puerto Rico's status continues to this day.
Malavet offers a critique of Puerto Rico’s current status as well as of its treatment by the U.S. legal and political systems. Puerto Rico is a colony of the United States, and Puerto Ricans living on this geographically separate island are subject to the United States’s legal and political authority. They are the largest group of U.S. citizens currently living under territorial status. Malavet argues that the Puerto Rican cultural nation experiences U.S. imperialism, which compromises both the island's sovereignty and Puerto Ricans’ citizenship rights. He analyzes the three alternatives to Puerto Rico's continued territorial status, examining the challenges manifest in each possibility, as well as illuminating what he believes to be the best course of action.

1
Race, Culture, Colonialism, Citizenships, and Latina/o Critical Race Theory

Latina and Latino Critical Race Theory (“LatCrit”)

In this chapter I try to center the Puerto Rican condition in critical academic discourse as well as in the broader marketplace of ideas. I use Latina and Latino critical race theory (LatCrit theory) to help convey the purpose, importance, and qualifying factors of studying and focusing on the flawed relationship between Puerto Rico and the United States.

According to one of the founders of this movement,

LatCrit theory is … discourse that responds primarily to the long historical presence and general sociolegal invisibility of Latinas/os in the lands now known as the United States. As with other traditionally subordinated communities within this country, the combination of longstanding occupancy and persistent marginality fueled an increasing sense of frustration among contemporary Latina/o legal scholars, some of whom already identified with Critical Race Theory (CRT) and participated in its gatherings. Like other genres of critical legal scholarship, LatCrit literature tends to reflect the conditions of its production as well as the conditioning of its early and vocal adherents.¹

As an expression of LatCrit scholarship, this book fits comfortably within contemporary critical jurisprudence.² More precisely, LatCrit is one of the most current of the constantly evolving forms of outsider jurisprudence, that is, scholarship produced by and focused on outsider perspectives, communities, and interests that goes beyond the dominant group.³ It is based on such movements as critical legal studies, feminist legal theory, and critical race theory.⁴

LatCrit is a refinement and refocusing of critical race theory (CRT), which Cornel West defined as follows:

Critical Race Theory is the most exciting development in contemporary legal studies. This comprehensive movement in thought and life—created primarily, though not exclusively, by progressive intellectuals of color—compels us to confront critically the most explosive issue in American civilization: the historical centrality and complicity of law in up holding white supremacy (and concomitant hierarchies of gender, class, and sexual orientation).⁵

The refocusing of academic and theoretical schools more precisely on previously invisible (or unrepresented) groups is not always easy. Just as critical race theory was born partly of the frustration of African American academics with the critical legal studies movement, LatCrit was born out of a sense of exclusion from CRT, especially from the CRT annual workshop. Therefore, claiming the center, even if only temporarily, requires sensibilities, because even the best-intentioned theory can sometimes produce unintended exclusionary effects. For example, developing the consciousness of being victims of U.S. racism has often produced more conflict than common ground among Latinas/os and between Latinas/os and other racialized groups, especially African Americans.⁶

The recent discussion of reparations provides a good example of the possible pitfalls of focusing exclusively or principally on one group.⁷ As did my fellow LatCrit Robert Westley—a reparations expert—I use a comparative study of reparations to set a moral, and sometimes legal, precedent for other claims of reparations and not to develop a “comparative victimology,” that is, “to situate a given group … at the top of an imagined hierarchy of oppression” intended to divide marginalized groups.⁸ The movement favoring Puerto Rico’s decolonization⁹ is one of many “progressive social movements” that seek to undo the legacy of U.S. imperialism. The problem of Puerto Ricans in no way diminishes the claims to reparations made by other groups, especially African Americans.¹⁰ Instead, I want to empower the Puerto Ricans and, I hope, help other victims of imperialism as well.

This disclaimer is important because the place for blackness in LatCrit has occupied a great deal of our scholarly time.¹¹ After all, LatCrit was born in part out of Latinas’/os’ frustration with the CRT workshop (the annual meeting of RaceCrits), which was at this time dominated by African American scholars. While LatCrit has and will continue to have a fundamental intellectual link to CRT, it represents a reorientation of critical race theory to “center” outsider groups other than African Americans. While I am not suggesting that there is a monolithic CRT experience or that the CRT workshop either represented the entire field of critical race theory or lacked the capacity to grow, the workshop unfortunately appears to have generated a sense of exclusion of Latinas/os and of issues of particular concern to us.¹²

From much of the policy discourse, LatCrit immediately identified the relative invisibility of Latinas/os, Native Americans, Asian Americans, and other persons of color besides African Americans. In other words, discussions about race in the United States are often based on the existence of only two races: blacks, who are subordinated to and by whites. Although other fields of social science have already explored this phenomenon—labeled the black/white binary paradigm of race—LatCrit was largely responsible for introducing it to legal scholarship.¹³

Many African Americans viewed the critique of the black/white binary paradigm of race by LatCrit scholars with outright hostility and substantial discomfort.¹⁴ LatCrit scholars—I think correctly—pointed out that discussions about race in the United States often assumed or were fundamentally based on the existence of one white race and one black race, thus excluding other persons of color, such as Latinas/os and Asian Americans, who are racialized as nonwhite. Our African American colleagues were concerned that the discussion failed to emphasize that white supremacy has made blacks its special target and that the power of the normative white society has created the paradigm. In that vein, Angela Harris defined “black exceptionalism” as “the claim … that African Americans play a unique and central role in American social, political, cultural, and economic life, and have done so since the nation’s founding. From this perspective, the ‘black-white paradigm’ that [LatCrit scholar Juan] Perea condemns is no accident or mistake; rather it reflects an important truth.”¹⁵

Because of LatCrit’s aggressive and often sensitive search for intersectionalities and after much debate, we have largely managed to reach a common ground that allows us to rotate centers to focus on particular groups without marginalizing other fellow outsiders.¹⁶ It is important to note that many of these scholarly debates have taken place in the LatCrit conferences and have been developed in the articles published in its symposia. Ultimately, the discourse of the black/white binary paradigm proves that LatCrit is self-consciously coalitional.

In addition, the recognition of agreements and disagreements between different scholars and communities of color must be anti-essentialist, in accordance with my use of the term essentialist in this book:

The concept of essentialism suggests that there is one legitimate, genuine universal voice that speaks for all members of a group, thus assuming a monolithic experience for all within the particular group—be it women, blacks, Latinas/os, Asians, etc. Feminists of color have been at the fore-front of rejecting essentialist approaches because they effect erasures of the multidimensional nature of identities and, instead, collapse multiple differences into a singular homogenized experience.¹⁷

LatCrit scholarship and its other interventions also are mature and sophisticated enough to manage to rotate centers, or, in the words of Athena Mutua, to “shift bottoms” to focus on different marginalized groups¹⁸ while avoiding essentialism.¹⁹ The most important part of this process is to acknowledge diversity and to avoid the homogenization of entire groups as well as the pitfalls of comparative victimology.²⁰ In this coalitional spirit, after a brief discussion of language and methodology, the remainder of this book uses the existing scholarship to formulate a LatCrit solution to the lack of sovereignty and the general marginalization of Puerto Ricans that has been imposed by U.S. imperialism, in the hope of assisting other legitimate claims.

Language, Narrative, and the Culture Wars

In the LatCrit context, deconstructionist postmodern analysis demands an approach to language that allows scholars to explore the hidden complexities of its subjects. The LatCritical use of language in legal scholarship is exciting, intellectually stimulating, and effective.²¹

Critical language does pose some challenges, however. Initially, Pomo, the language of postmodernism, is not, even now, a tongue in which I can claim fluency. (“Pomo” is short for postmodernism, the current philosophical age.) Until my immersion in LatCrit scholarship, I had never used the terms anti-essentialism or anti-normative or praxis in a written sentence. I am fairly certain that I had never used essentialism or praxis in any way in my entire life, but I have come to the realization that, though perhaps difficult, critical language will enrich my scholarship. Furthermore, critical theory and language are necessary for developing the ideas I explore in this book.

Reaching the proper balance between the critical exploration of language and its abuse is difficult. While I realize that the attacks on CRT all too often are essentialist attempts to silence different voices, some of the charges regarding the form of critical speech, when coupled with my own aversion to language abuse and experience with a few intemperate bits of discourse, give me pause.

In The Race for the Theory, Barbara Christian explained the real dangers of such language abuse:

I feel that the new emphasis on literary critical theory is as hegemonic as the world which it attacks. I see the language it creates as one which mystifies rather than clarifies our condition, making it possible for a few people who know that particular language to control the critical scene—that language surfaced, interestingly enough, just when the literature of peoples of color, of black women, of Latin Americans, of Africans began to move to “the center.”

Christian further explains that this language fails to communicate either positively or effectively. “And as a student of literature, I am appalled by the sheer ugliness of the language, its lack of clarity, its unnecessarily complicated sentence constructions, its lack of pleasureableness, its alienating quality. It is the kind of writing for which composition teachers would give a freshman a resounding F.”²²

The correct use of language is necessary for critical scholarship. More generally, mastering language is a necessary skill for a lawyer or an academic, and challenging the language skills of our audience can have strong pedagogical effects. As a teacher and scholar, I am offended by the notion that simple language is a sign of simplemindedness. For example, popular cultural narratives may sometimes be delivered in plain and simple language and still be able to transmit complex ideas. I am not implying that popular culture is always conveyed in “plain and simple” language. In fact, popular culture is incredibly complex and textured. But using plain and simple language makes complex messages accessible to everyone. Accordingly, I have tried to present complex concepts in language that make them accessible to students and persons outside my field. After all, making my work accessible to uninitiated audiences is part of my educational and political mission and is one of the purposes of this book.

In addition, I include cultural narratives in this book even though I am conscious of the attacks leveled against CRT in general and against the use of narrative in particular.²³ When scholars of color use storytelling, they often are attacked as being dishonest and failing to meet the supposedly objective standards of methodological quality required of academics. The exchange between two professors from my law school alma mater—Georgetown University Law Center—Mark Tushnet and Gary Peller, the sustained critique by Richard Posner, and the strongly worded attacks by Daniel Farber and Suzanna Sherry illustrate the increasingly bitter culture war that has overtaken the legal academy.²⁴

Discrediting outsider jurisprudence and outsider storytelling could prevent people of color from meaningfully participating in the legal discourse about civil rights in this nation. The suppression of the voices of scholars of color would again create the incongruity identified by Richard Delgado in “The Imperial Scholar,”²⁵ that the civil rights discourse in legal scholarship is dominated by the normative voices of white males and thus is incomplete. As George Martínez explained:

The fact that minorities have a different conceptual scheme from whites makes it plausible to suppose that there is a distinctive voice of color which is based on that distinctive conceptual scheme. It also explains why whites cannot write in the voice of color. They cannot speak in the voice of the outsider because they have a different conceptual framework.²⁶

Reserving the discourse for white males would deprive the aggrieved groups of a voice in the civil rights debate, and this would be anti-democratic. This scholarly segregation would also preserve the “perpetrator perspective” in the legal discussion of equal rights. Such a result would be particularly dangerous in this era of backlash when racism is being publicly denied, even though empirical evidence shows that bigotry in fact remains alive and well. We must resist the retrenchment of the existing hegemony. Storytelling is essential ammunition in the culture wars over civil rights in general and critical theory in particular in the legal academy.

Understanding why we cannot abandon the field of civil rights discourse to white academics also requires understanding that “truth” is not color-blind, especially legal truth, which in this context is more often than not socially constructed as a result of normativity—the enforcement of the dominant group’s power—and essentialism.²⁷

Minority and subordinated communities use narratives to counter the “singular homogenized experience” produced by the ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Gracias (Thanks)
• Introduction
• 1 Race, Culture, Colonialism, Citizenships, and Latina/o Critical Race Theory
• 2 The Legal Relationship between Puerto Rico and the Estados Unidos de Norteamérica (United States of America)
• 3 Puerto Rican Political Culture
• 4 Puerto Rican Cultural Nationhood
• 5 Theorizing a New Reality of Citizenship and Nation
• 6 A Framework for Legal Reform
• 7 Conclusion
• Notes
• Index
• About the Author