Letter to the Editors of the National Review by Attorney, Oreste Ramos, Jr. in rebuttal to their April 30, 2015 article, “Sorry, Jeb, Puerto Rican Statehood is an Awful Idea”:
As a subscriber and reader of National Review, I must confess that your editorial entitled “Sorry, Jeb, Puerto Rican Statehood is an Awful Idea” took me by surprise. Not only is the piece grossly simplistic and replete of constitutional, legal, political and economic inaccuracies, but most shockingly, your position is not in keeping with core conservative principles: beliefs that were championed by your founder, Mr. Buckley, and your publication for many years, and as you will see, by other champions of the right. Indeed, the case for Puerto Rican statehood is in lockstep with conservative principles, such as original Constitutional interpretation, defending individual enterprise, and promoting American values at home and abroad. Let me explain.
You start the piece with an erroneous premise: that Puerto Ricans have voted on status on several occasions and have always rejected statehood. Beware of absolutes! You would agree with me that if a question is based on a faulty premise, the answer is likely to be equally tainted.
Prior to 2012, as a result of political pressures and misconceptions, all plebiscites contained a legally erroneous definition of the status quo, which I think you unfortunately share. While I understand that not everyone on the Island agrees with this position, you jump into the conclusion that Puerto Rico is a “commonwealth” and do so without defining or delving into what our relationship with Congress really is from a constitutional standpoint.
In defining its relationship with the United States, Puerto Rico is not a commonwealth, a free associated state, or an Estado Libre Asociado. Those terms refer to the name of the government of Puerto Rico, not its relationship with Congress. Since 1898, Puerto Rico has been a territory of the United States, subject to the Territorial Clause of the Constitution. This relationship has not changed in over a century. In what are known as the Insular Cases, the U.S. Supreme Court further defined the relationship at the turn of the 20th Century as an unincorporated territory. A cursory review of the Insular Cases will suffice to conclude that, in “un-incorporating” the Territory, the Court was resting on race-based rationale (a vestige of a bygone time, I hope), and not on any Constitutional or legal precedent. Indeed, this was the same Court that handed down the infamous Dred Scott decision. As a territory, Puerto Rico can be disposed of by Congress at any time. Regardless of its political likelihood, this is a legal reality. And, at the end of the day, Puerto Rico does not have a legal right to have a say in that decision.
The plebiscites of 1967,1993, and 1998 – all of which were state-sponsored plebiscites – promoted a legally mistaken definition of the current status and not what it is: a territory with no guarantees of continuing its relationship with Congress, and thereby, the Nation. By placing their finger on the scales, the Popular Democratic Party (which defends the territorial status on the Island) has been able to “sell” something that it cannot deliver. And, why wouldn’t it? The Island’s territorial status and geographic separation from the Mainland breeds what the New York Times recently referred to as benign neglect. This has allowed the PDP to run amuck and dub the Island at home and abroad as it wishes, oftentimes in different and inconsistent ways.
In contrast, the 2012 plebiscite correctly defined Puerto Rico’s political status from a constitutional and legal standpoint. It asked the right question: do you want Puerto Rico to continue as a territory of the United States? And, out of non-territorial formulas, which one do you favor: statehood, independence, or free association (the discussion as to whether a free association is legally viable prior to independence is a matter for another day). Rather than making Mr. Putin blush, the 2012 plebiscite should make conservatives proud because it defined Puerto Rico from a correct Constitutional standpoint.
Moreover, you misstate the percentage that favored statehood in the 2012 plebiscite. 64%, not 44%, favored statehood, and 51% voted against keeping the Island as a territory of the United States. In addition, the fact that half a million voters skipped entirely the second question – on what non-territorial status should Puerto Rico promote – cannot be used against the case for statehood or any formula for that matter. If remaining silent were the case, then all of those who abstain from voting in federal or state elections could be counted toward or against any result.
Furthermore, while you have a legitimate concern in not wanting that Congress admit a so-called ambivalent state, there is absolutely no constitutional or legal pre-established requirement that a territory reach a vote threshold before joining the Union. And, your suggestion that states should reach a minimum represents just that: a suggestion, not a legal or constitutional precondition. Therefore, by comparing Hawaii’s and Alaska’s roads to statehood to that of Puerto Rico, you are comparing pineapples, king salmon, and plátanos.
Citing Puerto Rico’s economic and cultural reality as a reason to reject statehood denotes an attitude similar to that displayed by the Insular Cases Court. Puerto Rico would be a poor state, at the beginning. But, so were Hawaii and Alaska when they joined the Union. And, the reason why Puerto Rico is relatively poor today in comparison to stateside jurisdictions hinges on its colonial status and the fact that it has not been fully integrated into the National economy. Being able to fully participate in the National economy would spark entrepreneurship on the Island and shrink the size of our local government, which currently employs 25% of the workforce.
As for Puerto Rico being the first Spanish speaking state, think again. By 2050, the United States will have the world’s largest Spanish speaking population. So, Dios Bendiga a los Estados Unidos de América. Furthermore, Puerto Rico is not just “Spanish speaking” from a legal standpoint. English and Spanish are the official languages of the government. And, the fact that most people speak Spanish is no impediment to statehood. Congress cannot require any state to have an official language. That is a right reserved to the states under the 10th Amendment.
You claim that the current strategic advantages of the Island related to not having to pay Federal taxes would be stripped with statehood. I think that a publication such as yours should not rely on such an overly simplistic analysis. As it is, today, Puerto Rico pays federal income tax on all U.S. source income. Residents of the Island pay Federal payroll tax, such as Social Security and Medicare. As it is today, Puerto Rico pays more in Federal taxes than six states. In fact, a recent General Accountability Office study shows that statehood would be a win-win proposition for the Island and the Federal government. And there is more, the Federal government would pay less per Puerto Rico resident if it were a state than as a territory, and Island residents would receive more in benefits as a state than as a territory. Plus, ask the close to 50,000 people that leave the Island on a yearly basis for the Mainland. They are staying in the stateside, paying federal taxes, missing their arroz and habichuelas, and the warmth of our beaches. I don’t see them returning.
You finally make the outlandish claim that the cause of Puerto Rican statehood has long been more of a Democratic cause. Wrong again. Puerto Rico has elected two Republican governors and countless GOP mayors and state legislators. Puerto Rico boasts a large socially conservative constituency and its electorate is tilting more towards conservative fiscal principles. Moreover, you seem to overlook that the only National Party that has openly favored statehood for Puerto Rico in its platform is the GOP. Presidents Ford, Reagan, and Bush 41 openly and unabashedly expressed themselves in favor of the 51st state. President George H.W. Bush ran his 1980 Puerto Rico primary campaign on the slogan “Estadidad Ahora.” And, when he announced his presidential candidacy, President Reagan spoke in no uncertain terms in favor of Puerto Rico’s statehood. He doubled down, when he wrote in The Wall Street Journal the following:
“When I formally announced my intention to seek the Republican presidential nomination in 1980, my televised speech to the nation included a commitment to not only support statehood for Puerto Rico if the people of the island desire statehood. It also included a commitment that, as President, I would initiate statehood legislation, which really means that I would take the lead in persuading the people of Puerto Rico–the mainland United States–all American citizens–that statehood will be good for all of us.”
So, rather than telling Governor Bush that statehood is a bad idea, let’s pause and revisit our political and legal roots as conservatives. Let’s honor Presidents Reagan and Bush and support statehood. Governor Bush’s statements are in keeping with a conservative tradition.
Finally, I would be remiss not to mention that Puerto Ricans have served shoulder to shoulder with their fellow stateside citizens with unsurpassed valor. Our sons and daughters have never shied away from serving this great country, only to come back to a territory in which their full democratic rights are not recognized. The defense of freedom requires defending it abroad and en casa.
In closing, while I recognize your freedom to speak out against statehood in making your case against Governor Bush’s stance, let me remind you that your right, should not be mistaken for a sense of entitlement. Perhaps, the only way to do away with that false sense of entitlement that goes with colonialism is to recognize the right of 3.6 million U.S. citizens residing in Puerto Rico to become the residents of the 51st state.
Oreste Ramos, Jr.