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Puerto Rican Statehood

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. 11812 says:

    Sadly, this will be a partisan issue. For a society that lauds the theory of “consent of the governed,” you would hope the U.S. would simply honor the wishes of the Puerto Ricans — a majority have expressed their negative feelings toward the current scheme. After more than 100 years of colonialism there, this should be more than a Republican versus Democrat partisan fight.

  2. Joe says:

    If they are a state, I do not think they should be treated separately in international competitions, as they often are, and other special rules applied per their status would have to change. If the local populace wishes to be a state, it shouldn’t be a partisan issue. The last point also suggests a partisan reason for Rs to support. The 70%+ support of Latinos for Obama should be seen as a sign.

    Many in Puerto Rico are conservative on various issues. It is quite possible one or more of their House delegate could be Republican, if they play their hands properly. Anyway, I was not aware of this & it deserves more attention. Obama pledged to follow the will of the voters. But see:

    http://www.huffingtonpost.com/2012/11/07/puerto-rico-statehood-vote_n_2088254.html

  3. Joe says:

    Also: “Gov. Luis Fortuno, a member of the pro-statehood party who is also a Republican, welcomed the results and said he was hopeful that Congress would take up the cause.”

  4. Brett Bellmore says:

    I think, given the organization of the referendum, it is somewhat of an exaggeration to describe it as an unambiguous endorsement of statehood.

    According to what I’m reading here, about 54% of those who voted on this referendum decided they didn’t like the status quo. Those who voted this way had the option, (Which was exercised by only 72% of them.) to vote on several options. The statehood option got 61% of the votes of those who completed this second step.

    54% times 61% times 72% is, I believe, 24%. That’s a bit short of a ringing call for immediate statehood.

    What’s more, the pro-statehood party was defeated in that election, losing control of the government. Not exactly the outcome you’d expect if statehood were popular.

    I’d welcome them into the country, if they want in. Determining this will require a single, up down vote on statehood, not a Chinese menu vote like this, practically designed to be ambiguous. All the evidence at this point, however, points to such a vote failing miserably.

  5. 11092012 says:

    Brett,

    I understand your position, but if this election calling for statehood is somehow illegitimate for the reasons you describe, then doesn’t that implicate many (if not most) other elections in the U.S?

    For example, in Louisiana’s last gubernatorial election only about a third of Louisiana’s voters bothered to cast votes when Bobby Jindal won. Jindal won with 66% of those votes, that means something like 2/3 of 1/3 of the population of Louisiana favored Jindal as governor — or little more than 20%.

    Even so, at the end of the day, with only 20% support we still say the election is the popular mandate of the people from which the governor derives his or her authority.

  6. Brett Bellmore says:

    Well, if elections for public office were irreversible, the way a decision to join the US apparently is, after whatever process lead to Bobby Jindal coming up on top, you’d want to follow up with a “Yes, no, do you want Bobby Jindal?” vote. Instead of sticking everybody with the plurality winner in perpetuity.

    The point is, it wasn’t a vote on statehood. It was a very poorly designed vote on a whole bunch of options, of which statehood got a plurality. If you believe statehood opponents in Puerto Rico, the poor design wasn’t even an accident, it was deliberately designed that way by statehood supporters to obscure the fact that statehood has majority opposition. Which WOULD kind of explain why in the very same election statehood supporters lost control of the government.

    I’m fine with Puero Rico getting statehood. But it better follow a simple yes no referendum producing a majority, not a deliberate mess of a referendum producing a plurality.

  7. Joe says:

    I’m glad to agree with Brett when I can & his comments are sound. The comment about elections is a matter of scope. It is akin to amending a Constitution (here we are in effect amending the country) — a higher standard of proof, or clear majority, is warranted. A second vote with just one option would likely be sound, perhaps with a MN rule that a full majority voting must agree. I put that out just as an idea.

  8. Tyler says:

    Brett, I don’t read the results the way you do, but agree with where you come out (less than majority support for statehood). Your analysis understates the support, though.

    Putting aside those who chose not to vote altogether (Puerto Rico has a turnout rate that is declining, but still significantly higher than the U.S. proper), about 1.8 million cast ballots. Of these, 54% said they were unhappy with the current arrangement. Contrary to your post, all 1.8 million were allowed to vote on a preferred alternate arrangement, not just those who voted no. 466,000 people left this question blank, while 800,000 voted for statehood.

    That puts support at about 44% of the electorate, rather than 24%. Statehood would have had to pick up about 100,000 votes from those left blank in order to reach 50%+1 (900,001). That seems unlikely, in part because the group urging voters to leave this section blank is anti-statehood, and did so to protest the structure of the referendum, which they believed was designed to overstate support for statehood. So you’re probably right that less than a majority of the electorate supports statehood, but it is closer than you suggest.

    The result is that this election looks pretty much like the other status votes Puerto Rico has held in recent past. In 1998, 46.5% of voters favored statehood, almost identical to the 46.3% favoring statehood in 1993.

  9. Brett Bellmore says:

    Tyler: I believe you’re right, I misunderstood the structure of the referendum, and accordingly got the math wrong. A plurality for statehood, with the balance split between independence and the status quo. But not as small a plurality as I though.

    Yes, that’s consistent with past votes. But still rather different from the way the referendum was being portrayed in some places, as a simple vote for statehood.

    I’d have to say it should take more than a plurality to make an irrevocable decision. Ideally it should take a supermajority, but the very least it should demand is a genuine majority.

  10. Fraud Guy says:

    44-46% is still higher than the percentage of colonists who supported our war of independence, so we should have remained attached to the British Empire, apparently.

  11. Eric Hodgdon says:

    Puerto Ricans should be aware their decision to join the USA is irreversible. Freedom to vote into the USA is a perpetual subservience in the Dictatorship Democracy of the American Empire.

    Why the citizens already trapped into this system are not allowed to confirm their national government from time to time is a better question to pursue.

    Maybe most American citizens do not see the harsh difference from the theory laid out in the Constitution and the Records of the Convention of 1787 ?

    A living Constitution has provided reasonable service at times, but far too much evil has come about since the end of WW2 alone. Originalism, while seemingly a ‘good idea’ does not provide sound Supreme Court opinions from those purported to be of that camp.

    Elections in these United States do not in any way confirm acceptance of any constitution or authority to exercise governance, nor consent to be governed.

    If the Supreme Law is acceptable and is held so strongly, then it should be open to continual testing by direct vote from the People.

    “Article-
    Preamble:
    Being a free Sovereign people, We, who authorize others to act for us, require respect by those so authorized, their noting the responsibility of such authorization when exercised. The People’s authorization, is temporarily transferred to others when so elected, so that they may act, resulting in a shared burden, for when freely transferred, authority apart from Us is still morally connected to Us, the Supreme Source of all Authority. This relationship shall and must be renewed from time to time by vote of the People to confirm the existence of the Constitution as the Supreme Law of the land.

    Sec. 1 Effective on passage, a vote shall be called for in the several States to occur within thirty days, where the citizens will cast votes to indicate if the Constitution of these United States is and remains confirmed to exist as the Supreme Law of the land, and such vote so requiring a three-fourths majority in affirmation.

    Sec. 2 Then every eighteen years from the date of passage, citizens shall cast votes to indicate if the Constitution of these United States is and remains confirmed to exist as the Supreme Law of the land, and such vote so requiring a three-fourths majority in affirmation.

    Sec. 3
    a) If the required affirmation is not reached in any said vote, a National Convention of the several States shall be called immediately and shall begin proceedings within sixty days;

    b) The convention shall consist of delegates elected by the people of each of the several States according to standard convention election procedures;

    c) No delegate shall be currently holding a position of election or appointment or employment or any such within the past 6 years of the time of such election as delegates;

    d) Delegates shall be qualified to citizens of an age of 25 years or more.

    Sec. 4 Rules for the Convention, when called for by this amendment, shall be set forth at the start of the Convention.

    Sec. 5 If a Convention is called, and while so in its proceedings, it shall enjoy absolute independence from new laws and any other laws which interfere with its deliberations, no hindrance shall come to any persons requested by a Convention.

    Sec. 6 During such Convention, the Constitution remains in effect.

    Sec. 7 Rendered deliberations shall consist of two options:
    a) Declare an affirmation;

    b) Deliver proposed amendments for ratification, using a method described in Article V, as determined by Congress.

    Sec. 8
    a) Said convention shall have 120 days of official, in-session days;

    b) If a rendering is reached within the 120 days, then it will be so delivered to Congress;

    c) If 180 days pass without a rendering, the Convention ends, and the Constitution is thereby affirmed.

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