3 — The Exclusion from Constitutionalism and other Evils
Since 1898, Puerto Ricans have been excluded from constitutionalism. We have been governed by an imperial power that has maintained several regimes of exception in the “50 states”, in Puerto Rico, and in the rest of its colonies or “overseas territories.” To understand the ideas and practices of constitutionalism as the foundation of the so-called “liberal democracies”, it seems convenient to summarize the constitutional development of the United States, in order to appreciate the paradox of the colonial domination over Puerto Rico by a nation that calls itself democratic.
When Puerto Rico went from being a colony of Spain to a possession of the United States, the young American empire already had a more-than-one-century-old history of implementing exceptions to the principles of equality and democracy. As we saw in Chapter 2, the regime they established excluded much of the population. The exclusions were partially remedied. To this day, many of them continue. The colonial regime in Puerto Rico is an eloquent manifestation of the persistence of a state of exception, of a total exclusion of the possibility of living under a system that embodies the Enlightenment principles articulated since the 18th century.
In modern politics, self-government is attained through the foundation and development of a nation-state. In turn, the foundational act consists in the establishment of a constitutional regime, that is, in the drafting and implementation of a constitution. In this chapter I discuss the salient points of constitutional theory, in order to sustain that Puerto Ricans have never lived under the tenets of democracy and constitutionalism. In the final section of this chapter, I discuss why admitting Puerto Rico as one of the American “states” would not cure the current distance between the reality of an exclusionary politics and the republican theory of democratic representation.
Rise and Fall of the Revolutionary Spirit
What are the theoretical pillars of constitutionalism and what historical processes shaped them? What is a republican system of government? What is its origin? Answering these and other questions requires me to first refer to the revolutionary events that occurred during the last quarter of the 18th century.
The revolution of the thirteen British colonies in North America was an event with a global impact, during which the liberal creed of equality of human beings was articulated as the foundation of the claim to self-government. That revolution led to the establishment of constitutional governments for the original thirteen republics, each divided into three departments, without monarchical powers such as then existed in most of the planet.[1] In 1788 another constitution was ratified, but it established a national government, which came to hold the sovereignty that was dispersed under the Articles of Confederation in each of the thirteen original, former colonies. That is to say, under the Articles every “state” had been considered sovereign; and the system established therein bears no resemblance to the national government that was designed in the Constitution of 1787.
The American Revolution influenced Europeans, and Americans under Gallic and Iberian imperialism, from the French Revolution (1789–1799), to the wars of independence that ushered in the nation-states of Latin America. Our political and constitutional vocabulary comes largely from the 18th century, and the ideas of freedom and republicanism are still, rather than influential, predominant –although they are currently under siege. [2]
The ideas that informed the rhetoric of the Declaration of Independence –as well as the pamphlets and newspaper editorials that preceded it, and that continued to be produced after that July 4, 1776– were essentially secular, grounded in concepts of the European Enlightenment. [3] Paine, Adams, Jefferson, Franklin, Madison, et al., were men of the Enlightenment, apprehensive of the dangers of the confluence of politics and religion, and aware of the devastation of European wars between Protestants and Catholics and of religious conflicts in the colonies themselves. Therefore, they sought to prevent both the interference of religion in the government and the official establishment of any religion. The provisions in the constitutions of the colonies –then “states”– served as models for the division of government into three branches or powers, and for the religion clauses of the First Amendment of the U.S. Constitution. [4]
One of the problems to be solved by the thirteen colonies would be what kind of government they should implement once they achieved independence. After the experiment of the Articles of Confederation, which was a treatise of thirteen newly founded sovereign republics, they opted for a national republic. In a republican system of government, governmental power is diluted in the various departments: the legislative, the executive, and the judicial. Rather than division of powers, what characterizes such a form of government is the interdependence between those powers, which does not eliminate the likelihood of them coming into conflict, of course.
According to Arendt, a revolution is nothing more than a new beginning, through the establishment of a regime of freedom; freedom is understood as the active participation of the population in political decisions. [5] That is to say, the concept of freedom of the revolutionaries of the colonies was consubstantial with that of self-government. Freedom was nothing more than being in charge at your home, and participating in the political sphere.
The establishment of thirteen republics, and then of a federal republic with a constitution that would be the supreme law in those former republics that became “states,” responded to the revolutionary elite’s conviction that a monarchy was incompatible with this new notion of freedom, which translated into that elite coming out of the darkness of the private sphere and achieve the visibility offered by the public arena. The British monarchy, and Parliament, excluded colonial elites from the full use of their political powers, including debate, persuasion, and the task of legislating. The work and debates of the First Continental Congress awakened in these elites a taste for the sense of ecstasy offered by debate and political action.
Dispensing with a monarchy and establishing in its place a republican government, in which power is divided into three departments that complement and limit each other, raised and still raises the question of legitimacy. The monarch was a representative of the divinity on earth, who reigned in the name and by the will of God, and embodied in his person the past, present, and future of the nation. [6] Therefore, one of the challenges that arose in the 18th century, which persists today, is that of obtaining the obedience and loyalty of the governed in the absence of an absolute frame of reference, which was long conceived as tied to divinity.
Of course, the present erosion of the legitimacy of the so-called Western democracies is mainly due to the consolidation of national and transnational oligarchies that have usurped, weakened or neutralized the functions and powers of the nation-states, something that occurs in an extreme way in Britain and the United States. This has taken place as the plundering of the wealth produced by workers has increased, including stagnant wages, worsening working conditions, the destruction of labor unions, and the decline of the middle classes. The latter is a consequence of the former: The erosion of nation-states has been at the service of the hoarders of the wealth produced by the majority of the population.
For the so-called “liberal” sector, the challenge has always been ensuring that notions of human equality and dignity predominate among the population and political actors, and that such notions prevail in the sense of national identity, instead of differentiating traits, such as ancestral origin, “race,” or religious creed. [7] Smith emphasizes the need to recognize and take into account the reality that “political elites must find ways to persuade the people they aspire to govern that they are a ‘people’ if effective governance is to be achieved.” [8] He also calls attention to the “failure of liberal-democratic civic ideologies to indicate why any group of human beings should think of themselves as a distinct or special people.” [9] Smith sees such a failure as a significant political burden. [10] One only needs to look at the resurgence in so-called Western democracies of exclusionary and essentialist ideologies –nationalism, racism, religious fundamentalism– to understand what Smith is referring to.
As with other revolutions, the American Revolution was partially successful. Aside from leaving it up to each state to decide whether to abolish slavery, another of its shortcomings was that another type of aristocracy came to control politics –an aristocracy that does not inherit titles, but (like aristocrats) does display and inherit wealth, prestige, recognition, credibility, and political power. [11] On the other hand, the constitutional regime that was inaugurated in 1788 was republican, but undemocratic, and not only because it excluded slaves and women from the political sphere. The fact is that in the original document the members of the House of Representatives were the only ones elected by popular vote. The senators and the president were chosen by the states, and by the electoral college mechanism, respectively.
I discussed in the previous chapter why the tension between capitalism and democracy is inevitable. In today’s United States, an oligarchic aristocracy dominates politics; it blocks reforms seeking to tackle the current social and ecological debacle, and the inequality of wealth and power –which is now at its most acute point in eighty years. For all practical purposes, what has happened in the U.S. is an overthrow by the rich and their corporations of the federal and state governments, and the establishment of an oligarchy. [12] The democratic crisis that this signifies is also a crisis of the American nation-state. What’s worse is that it’s part of a global trend toward authoritarianism, fueled by notions of identity based on nationalism, ethnicity, race, and/or religion, and by politicians who legitimize, reinforce, and disseminate those notions. Many fail to recognize that the real foes are the wealthy oligarchs, and instead believe that immigrants, or people with certain characteristics (determined by the phantasmagoric but powerful notions of race, ethnicity or national origin) are to be feared, as well as blamed for everything bad that happens under the Sun.
In the 18th century, the colonists of North America fought against what they saw as the tyranny of the British imperial government. A less visible tyranny, though powerful and lethal, is in place today; but much of the U.S. population spends its energies in fratricidal strife, hating nonexistent “enemies.” In the United States, both freedom as participation and influence in public affairs, and freedom from the intrusion of religion, have been atrophied. That country is moving closer to an authoritarian regime, which is the antithesis of a regime of freedom –for revolutionary ideals and practices, i.e., liberating and democratic, do not prevail or are threatened.
The choice facing the U.S. is either recapturing the revolutionary spirit, or allowing the current debacle to run its course. The dilemma for Puerto Ricans is to embody the revolutionary spirit for the first time, or to succumb. In Puerto Rico, the biggest obstacle is imperialism, which includes an overwhelming capitalism that reduces us to being consumers of U.S. products, with no possibility of economic and social development. In the face of these forces, general apathy has been exacerbated, and a notable absence has been created or deepened: that of a creative and mobilized civic ethos.
Constituent Power and Its Absence in Puerto Rico
In his opinion in Marbury v. Madison,[13] Chief Justice John Marshall articulated those principles of modern constitutionalism that are embedded in the doctrine of constituent power. [14] According to this doctrine, the Constitution is the result of the actions of an autonomous people, which, based on their freedom of action –their sovereignty– exercise the political prerogative known as the “constituent power”, to give way to a process of drafting and ratifying a fundamental law, that is, their Constitution.
A constituent convention carries out the deliberative and drafting process, and submits the proposed constitution to the people. If approved, what has been drafted and ratified becomes a Supreme Law. That fundamental law is adopted by the people, and the constituted powers –the governmental bodies created by that constitution– are conceived to be subordinate to that law. Therefore, they cannot act in a manner contrary to the Constitution, since the legal supremacy of the fundamental law must prevail. In this way, the rational but esoteric principle of popular sovereignty is replaced by the practical and plausible principle of constitutional supremacy.[15]
Hence, constitutional theory tells us that the Constitution is a legal instrument, and the outcome of a particular political process, so that such an instrument is the offspring of the sovereign entity we call “the people.” In the same way that “the sovereign people” does not admit subordination to another political power, so the Basic Law which we call the Constitution does not accept any higher juridical authority. The Constitution has to be a supreme law, in order to compensate for the fact that the sovereign people exit the scene –at least temporarily and indefinitely– and leave in its place their Charter of Government, whose juridical supremacy takes the place of the mythical political supremacy of the people. [16]
Once a constitutional regime is established, the people organize themselves as the electoral body in order to participate in the periodic elections that determine who will govern. Such participation provides formal legitimacy to government actions –laws, executive policies, and judicial rulings. What provides substantial legitimacy to these actions is their consonance with the fundamental rights of the people and with the democratic principles that inform the Constitution itself. After all, a constitutional regime is not established to found a tyranny; but the Constitution cannot guarantee itself: it depends, among other factors, on perennial vigilance; on the development and maintenance of democratic and ethical attitudes and practices; on respect for the law (a government of laws, not of human beings), and on a solid institutional framework. It also depends, as we know today, on political power not being usurped by a minority that enthrones itself in government positions, while responding to the interests of the rich and ultra-rich, in the service of greed and cruelty.
In short, the constituent faculty is a sovereign power, which is exercised to found the constitutional regime that a people choose to give themselves. Such constituent prerogative does not admit or require an authorization from any entity, regardless of whether it is external in relation to the sovereign people. That political and theoretical scaffolding sustains the foundational and constitutional edifice of the government that a sovereign nation establishes for itself. The task and the process of giving themselves a constitution, of establishing the fundamental rules of governance, admit no interference from another political entity; much less do they require prior authorization to act.
These principles lead to the inescapable conclusion that the process that took place in Puerto Rico between 1950 and 1952 cannot be described as “constituent” or “constitutional.” Puerto Rico has never exercised the constituent power, which is one of the many consequences of its status of political subordination.
Congress passed three “organic laws” to establish the nature and contours of Puerto Rico’s “insular” or “local” government: The Foraker Act of 1900; the Jones Act of 1917; and Law 600 of 1950. Each of those laws was an exercise of the broad power that the U.S. Congress has over Puerto Rico and its people. All three determined the structure of the colonial state, and the constitutional and legislative supremacy of the United States over Puerto Rico. The study of the process that unfolded between 1950 and 1952 is particularly important, since Puerto Ricans elected delegates to a supposed “constituent,” or “constitutional,” convention which drafted the current “constitution” of Puerto Rico. But this process did not change the political reality that has existed since 1898: Sovereignty over the island and its inhabitants kept resting with the U.S. government –not just Congress. A study of the legislative history of Law 600, which includes the recognition by Antonio Fernós Isern and Luis Muñoz Marín that Congress retained the sovereignty it acquired over Puerto Rico through the Treaty of Paris of 1898, demonstrates this, as does the process that the law itself unleashed for the approval of a “constitution.”[17]
Act 600 was the third “organic law,” and the “constituent” or “constitutional” convention that Congress authorized was for all intents and purposes a mere drafting committee, as the U.S. Congress reserved the power to approve what was drafted. Once it went into effect, the constitution that was drafted and approved in Puerto Rico, and in Congress, has been subordinated to ordinary federal laws and, of course, to the U.S. Constitution. To be a Constitution, with a capital C, it had to originate in a sovereign exercise. That is to say, it had to be approved in accordance with the doctrine of constituent power that I have already summarized; and, once in force, it had to be a Fundamental, Supreme Law. The latter follows from the former.
In 1950 there was no “transfer of sovereignty,” so the ability of the people of Puerto Rico to exercise the constituent power was not recognized, an exercise which by definition could not be subject to prior authorization or limitations, since it must be an attribute of sovereignty. Law 600 merely “authorized” Puerto Ricans at the time to draft a supposed “constitution,” which had to meet certain requirements, and be approved by the president and Congress to enter into force. [18] At the same time, Act 600 left in place the second organic law –the Jones Act of 1917– except for the organization of Puerto Rico’s internal government, which would be contemplated in the document it was authorized to draft. Thereafter, that part of the 1917 statute would be called the Federal Relations Act. With this, the sovereignty of the U.S. Congress –even its legislation applies to Puerto Rico as it pleases– remained intact.
That Act 600 gave Congress the power to approve, reject, or conditionally approve the product submitted to it by the convention elected by Puerto Ricans. That’s not transfer of powers; it is its consolidation. Above all, because the result of that farce was to divide Puerto Ricans in what we were once united: Before 1952 there was unanimity of conviction about our colonial condition. The leading role of the leadership of the Popular Democratic Party in the process from 1950 to 1952 had the effect, along with other factors, of turning into dogma the false assertion that such process put an end to the colonial regime. For many years those who fought against that dogma were treated as irredeemable dissidents or as madmen.
No popular referendum could change that reality. That constitution of the E.L.A., or “commonwealth,” is subordinated to the laws and Constitution of an entity that is itself sovereign: the government of the United States –which, in another of many acts of domination, authorized the birth of that illegitimate offspring, doomed to shrink over time; never to grow up.
In light of the above, a member of the Popular Democratic Party and former senator was wrong to state that “the internal governmental structure [of the E.L.A.] was the product of a constituent convention, and not of an organic law of Congress.” [19] The first reality that contradicts this statement is precisely that, without Law 600, no document would have been drafted. The quoted incorrect statement also overlooks that no people need the authorization of the government of another people to write its Constitution, unless what it is going to write is not a Constitution.
The colonial regime has denied Puerto Ricans the exercise of their sovereignty, and with it, the power to give themselves their Constitution and thus establish their nation-state. Puerto Ricans continue to be excluded from constitutionalism, which is not the basis of the government under which we live. That is not democracy, but tyranny. Most of Puerto Rico’s ills stem from that exclusion.
Statehood and the Myth of Representation
The acceptance of those who are governed to the authority of the rulers –that is, the legitimacy of those who govern– has always been embedded in fictions: the divinity of the pharaohs; the divine right of kings to rule their subjects; democratic representation. That is, the rule of the few over the many has always been based on ideas –which David Hume called “opinions.” [20] Using that terminology, Morgan expressed that “all government rests on the consent, however obtained, of the governed. And over the long run mere force, even if entirely at the disposal of the governing few, is not a sufficient basis for inducing consent. Human beings, if only to maintain a semblance of self-respect, have to be persuaded. Their consent must be sustained by opinions.” [21]
That is why the few who govern strive to nurture those ideas or “opinions” –that democracy is the best conceivable system; that we live in a democracy; that the people are represented in the legislature and the executive– which should not be so easy, for the ideas “needed to make the many submit to the few are often at variance to observable fact.”[22]
The regime in Puerto Rico doesn’t even come close to being “democratic.” According to Rivera Ramos, it is at best a regime of partial democracy, since periodic elections are held for the positions of the colonial state, today called the “commonwealth.” He also recognizes the reality that such a “partial democracy” suffers from the central deficiency of “liberal democracies”: the little real influence of citizens in the way they are governed, always at the mercy of a group or “ruling class” that monopolizes the political realm. [23] Of course, the most important decisions about our lives are made by the U.S. government and U.S. capitalists. The latter do not formally govern, but, as we have seen, they have had enormous power over Puerto Rico and Puerto Ricans since the dawn of the 20th century.
U.S. citizenship has given some plausibility to the aspiration of making Puerto Rico a “state of the Union,” without such an aspiration having resulted in a “problem” for the metropolis. If anything has characterized Puerto Rican politicians, it has been their docility and conformity to the empty promises or crumbs they have received in and from Washington, D.C.
Today, the elite that claims to favor Puerto Rico becoming the “51st state” are fond of referring to themselves and the rest of us as “American citizens residing in Puerto Rico.” U.S. politicians, notably on the Democratic Party, also frequently use this appellation, which ignores the existence of a nation that, although without a national state, is composed of a people with their own history, culture, art, language, and idiosyncrasies. [24] These citizens, the discourse of pro-statehood politicians elaborate, have a “civil right” to equality that can only be achieved by joining the Union as a state.
To claim as a civil right the political right to participate in the electoral processes of the polity that governs us ignores that we have the rights that are exercised; not those that have never been exercised and will never become a reality –at least not until Puerto Ricans are displaced ad decimated, a process which already began. Statehood would only be possible in a Puerto Rico with [virtually] no Puerto Ricans. The claim for statehood has always come from weakness and even servility, which has contributed to it falling on deaf ears for more than 12 decades.
Moreover, this notion that the absence of participation in the electoral processes of the United States is a matter of “civil rights” hides the structural nature of domination –which is precisely what explains the socio-cultural and economic subordination of African Americans, who fail to overcome discrimination and disadvantage as phenomena that are part of the socio-political and psychological fabric, of the culture and practices, prevalent for centuries in the United States. It also hides the intergenerational ignominy of millions of poor and poorly educated “whites,” whose only consolation is to believe themselves superior to other poor people, be they African-Americans, Hispanics, or dispossessed immigrants.
A pertinent question is whether statehood’s “equality” is a superficial and vacuous slogan, and whether those who articulate it ignore or evade the reality that millions of human beings, living and dead, have struggled in that American nation with little or no success to obtain a dignified life that is rooted in substantial equality. “Voting rights” have never been enough for women, African Americans, Asians, Latinos, gays and lesbians, the dispossessed, the abused, and the vulnerable.[25] In fact, Puerto Ricans who have emigrated to the United States have historically lived and suffered from this perennial, structural inequality.
The argument of many is that Puerto Ricans should insert ourselves fully into the United States and contribute from the 51st state to improve that society. That notion is added to the supposed goodness of having the right to vote for the president and for people who represent us as members of the U.S. Congress.
Regarding the first argument, the first thing that jumps out is that there are more than four million Puerto Ricans living in the United States, while that country continues to go from bad to worse. What influence can four, or eight million, exert on that ocean? That argument ignores realities, such as the demobilization of Puerto Ricans (here and there), dedicated only to work and consume. Similar to the demobilization of much of U.S. society, it has left the field open to all kinds of elements that have made politics their career.
The vote is inadequate as a tool for change, because in the U.S. –similar to Puerto Rico– there is only one party with two factions: In the United States it is the party of the oligarchy and its precious money. Compounding the picture is that one of those two factions became radicalized –something that has historical antecedents in the Dixiecrats, whose descendants migrated to the GOP when the Democratic Party became anathema as the supposed party of civil rights and more justice for African Americans, minorities and women.
Would having two senators and six representatives in the House make a significant difference? How “represented” are Americans in Congress and the White House? Isn’t it the money from the corporate coffers that determines which laws and policies are passed and implemented? The impact of voting rights is very limited, in large part because constitutionally established government institutions have been co-opted by the interests of millionaires and billionaires, who rarely show any awareness of the impact of their greed on the majority of human beings living in the United States and the rest of the world.
It’s not about being against the vote, of course. It’s that the impact of voting on our collective destiny is too overestimated, given the structural flaws of “liberal democracies,” and particularly of the American polity. The hope that under “the 51st state” Puerto Ricans would ally with progressives in the United States to stop the current debacle is wishful thinking; another reckless fantasy.
[1] See Hannah Arendt, On Revolution (1963); Bernard Bailyn, The Ideological Origins of the American Revolution (1967; 2017); Jonathan Israel, The Expanding Blaze: How the American Revolution Ignited the World (2017); Jonathan Israel, A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern Democracy (2010); Edmund S. Morgan, American Slavery, American Freedom (1975); Edmund S. Morgan, The Birth of the Republic, 1763–1789 (4th ed. 2013); Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (1988); David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (2009); Gordon S. Wood, Power and Liberty: Constitutionalism in the American Revolution (2021).
[2] According to Arendt, the revolutionaries of the 13 colonies and France “prided themselves on having inaugurated a new era for all humanity.” Arendt, supra note 1, at 53.
[3] See Arendt, supra note 1, at 26; Israel, A Revolution of the Mind, supra note 1 (Foreword).
[4] That provision of the U.S. Constitution states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. It is divided into two clauses: the one prohibiting the establishment of an official religion; and that which protects freedom of worship or religion. See Ira C. Lupu & Robert W. Tuttle, Secular Government, Religious People (2014).
[5] Arendt, supra note 1, at 32–34; 41; 46; 56; 119; 125–126. For Arendt, freedom means living in a political way, which is nothing other than being a participant in the decisions of government. Arendt, at 32. Such a way of life could not be obtained in a monarchy, but required the constitution of a republic. Arendt, at 33.
[6] Arendt, at 39; 118.
[7] See, e.g., Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 13–14 (1997); Judith Shklar, American Citizenship: The Quest for Inclusion 13–14 (1997).
[8] Smith, supra note 7, at 9.
[9] Id.
[10] Id.
[11] Jonathan Israel uses the term “informal aristocracy.” Israel, A Revolution of the Mind, supra note 1.
[12] On the concept of public happiness, and its meaning, see Arendt, supra note 1, at 72; 119; 123; 126–128; 130.
[13] 5 U.S. 137 (1803).
[14] Marbury, 5 U.S., at 177–178.
[15] For a rigorous exposition of the doctrine of constituent power, see Pedro de Vega García, La Reforma constitucional y el problema del poder constituyente (1985). See also Carl Schmitt, Constitutional Theory 75–76 (1928; 2008); Roberto Ariel Fernández Quiles, El constitucionalismo y la encerrona colonial de Puerto Rico 7–23 (2004). Cf. Morgan, Inventing the People, supra nota 1, at 153: “The sovereignty of the people is a much more complicated, one might say more fictional, fiction than the divine right of kings. A king, however dubious his divinity might seem, did not have to be imagined. He was a visible presence, wearing his crown and carrying his scepter. The people, on the other hand, are never visible as such. Before we ascribe sovereignty to the people we have to imagine that there is such a thing, something that we personify as though it were a single body, capable of thinking, of acting, of government, superior to government, and able to alter or remove a government at will, a collective entity more powerful and less fallible than a king or than any individual within it or than any group of individuals it singles out to govern it.”
[16] For an elaboration of the argument that says that the People maintain their power to revise and amend their Constitution, and even to replace it with another given certain circumstances, see Joel I. Colón Ríos, La constitución de la democracia (2013).
[17] For the legislative process that culminated in Law 600, see Roberto Ariel Fernández Quiles, El constitucionalismo y la encerrona colonial de Puerto Rico 33–40; 42–43 (2004); Ronald Fernandez, The Disenchanted Island: Puerto Rico and the United States in the Twentieth Century 179–184 (1992); 3 José Trías Monge, Historia constitucional de Puerto Rico 40–62 (1982).
[18] Public Law 600, 81st Congress (July 3, 1950). Section 2 of that act stated that Congress was authorizing the Legislature of Puerto Rico “to convene a constitutional assembly to draft a constitution for the island of Puerto Rico. Such a constitution will establish a republican form of government and include a bill of rights.” Section 3 required that the constitution be sent first to the President of the United States, who will send it to Congress if he determines that it is in conformity with Act 600 and the U.S. Constitution. It also required congressional approval for it to go into effect.
[19] Ramón Luis Nieves, Estado Libre Asociados del Siglo xxi 245 (2nd ed. 2004). For my response to many of Nieves’ contentions, see Roberto Ariel Fernández, Algunos apuntes críticos a un libro reciente: Estado Libre Asociado del Siglo xxi, de Ramón Luis Nieves, 66–1 Revista del Colegio de Abogados de Puerto Rico 49 (2005).
[20] See Morgan, Inventing the People, supra nota 1, at 13.
[21] Id.
[22] Id. Morgan elaborated: “The few who govern take care to nourish those opinions. No easy task, for the opinions needed to make the many submit to the few are often at variance with observable fact. The success of government thus requires the acceptance of fictions, requires the willing suspension of disbelief.” Morgan, at 13; and: “Government requires make-believe. Make believe that the king is divine, make believe that he can do no wrong or make believe that the voice of the people is the voice of God. Make believe that the people have a voice or make believe that the representatives of the people are the people.” Id.
[23] Efrén Rivera Ramos, The Legal Construction of Identity: The Judicial and Social Legacy of American Colonialism in Puerto Rico 229–230 (2001).
[24] Lalo states that “Washington’s policy is inscribed in the belief of the empty island. For the United States, there are no Puerto Ricans and it conceives of an island without nationals, a population without political status. … There are no Puerto Ricans, only U.S. citizens residing in Puerto Rico. … [This] gives it both a legal framework and a set of obstacles to the recognition of Puerto Ricans.” Eduardo Lalo, Intervenciones 251 (2018).
[25] See, e.g., Smith, supra note 7, at 14; Shklar, supra nota 7, at 13–14.
