BOMBS BURSTING IN AIR, AND OUR FLAG STILL THERE: Why A Small Island Near Puerto Rico May Be The Harbinger Of A Constitutional Crisis

By SANFORD LEVINSON
Thursday, Jul. 12, 2001

Both the Clinton and Bush Administrations have wrestled with the problem of what to do with Vieques. A small island off Puerto Rico, it is, according to the Navy, uniquely valuable as a site for the training of armed forces, firing live ammunition, and dropping real bombs, in simulated battlefield conditions.

use of Vieques, though not until 2003. Apparently, the White House believes that protests on Vieques are having sufficient impact on mainland Puerto Ricans and other Hispanics to place their votes in the 2004 election in jeopardy.

Vieques may, however, be only the tip of the iceberg with regard to the role that Puerto Rico may play in our political and legal consciousness in coming years.

Puerto Rico’s Troubled Status

Puerto Rico is the largest, most populous remaining legacy of the Nineteenth Century’s Age of Imperialism. Even now, the United States has yet to confront fully the implications of its venture into imperialist governance.

When the United States "won" Puerto Rico (along with the Philippines) in the Spanish-American War

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of 1898, it gained not only territory but also jurisdiction over millions of persons. That raised an important question: Were these new Americans to fully be welcomed into the American polity, with the rights and privileges that attach to membership? Or, put another way, as the Supreme Court’s 1901 "Insular Cases" asked, "Does the Constitution Follow the Flag?" Unfortunately, the short answer was "no."

Prior American expansionism had been predicated on the assumption that in due time, territories would become States — at a point when whites had settled each area and organized a functioning government there. That pattern held true for Hawaii and Alaska. But America’s "imperial territories," such as Puerto Rico, did not fit the pattern. Indeed, they were notable for their lack of white settlement. As a result, they were not considered "States-in-waiting."

The five-justice majority of the Supreme Court that decided the Insular Cases made no effort to hide the reason for the distinction between incipient States such as Hawaii and Alaska, and imperial territories such as Puerto Rico. In the Court’s view, Puerto Ricans (and, even more, Filipinos) were just too different from "real" Americans, as measured by color, religion, language, and customs, for the territory to aspire to full membership in the polity, with attached constitutional rights.

In this sense, the Court viewed the inhabitants of Puerto Rico much as it viewed American Indians. Basically, Puerto Ricans, like Americans aboriginals, had only such rights as Congress chose to respect.

Citizenship without Governance Rights

While Congress extended citizenship to Puerto Ricans in 1917, the switch in status made little practical difference. Puerto Ricans did gain the right to migrate to the mainland. However, islanders did not gain the right to full participation in the basic governmental institutions of the United States. Even today, they still lack that right.

was given the right to choose three presidential electors. Yet no such right exists for the four million Islanders. Nor do they have voting representation in the House of Representatives or the Senate.

According to its population, Puerto Rico, if it were a State, would merit seven representatives — a respectable contingent. With the persuasive force and voting power of those seven, as well as two Senators, might the bombs already have stopped bursting in Vieques?

In this context, the lyrics from the "Star Spangled Banner" — referring to "bombs bursting in air" that "gave proof through the night that our flag was still there" — take on a new, ironic meaning: On Vieques, the bombs show that our flag is still there, but that the Constitution continues to be, at best, an uncertain presence. If taxation without representation is wrong, how much worse might bomb-testing without representation be?

Why a Pro-Statehood Petition from Puerto Rico Might Well Be Rejected

Approximately 45% of Islander Puerto Ricans support statehood; an equal number support the retention of the present Commonwealth status; and the remainder would opt for independence. But imagine, for a moment, that a solid majority were to become pro-statehood and to petition Congress for admission to the Union.

One can easily imagine that such a petition would generate intense controversy and, quite possibly, rejection. The reasons would undoubtedly include the race-tainted rationales set out by the Court in 1901 — even if members of Congress today would speak more euphemistically, save perhaps with regard to the issue of language. (Most Puerto Ricans speak only Spanish, and that would doubtless be cited as a reason to reject statehood.)

A Constitutional Crisis?

Puerto Rico has no "constitutional right" to become a State, if by that one means a legal entitlement that a court would recognize (and enjoin Congress to implement). Nevertheless, the Constitution has meaning even if the Court, for whatever reason, refuses to enforce it. For that reason, the denial of statehood would constitute a true constitutional crisis for the United States.

Surely it would be intolerable to continue to treat Puerto Rico as if the mindset and categories of the Age of Imperialism were unchanged. If the United States were to insist on continuing to treat Puerto Rico as a colony, it could well expect legitimate castigation from the United Nations — as well as from Puerto Ricans themselves.

In a worst case scenario, more bombs might burst in air — or, at least, gunfire might be exchanged — either as part of a newly invigorated Puerto Rico independence movement or, perhaps even worse, as part of the armed suppression, in the name of the United States, of such a movement.

fellow citizens’ demands for "republican governance" and the "consent of the governed." After all, they are the linchpins of our constitutional order.

Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Regents Chair in Law and Professor of Government at the University of Texas (Austin). An internationally eminent scholar of constitutional law, Professor Levinson also teaches and writes about professional responsibility, jurisprudence, and political theory. He is the author of Constitutional Faith (Princeton, 1988) and Written in Stone (Duke, 1998).

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