Chapter 4 -Commonwealth and the “Generic Consent” Nonsense

30 min readDec 18, 2023

For more than 125 years, generations of Puerto Ricans have gone through life carrying our particular dissociation between concepts and realities. We have hidden our reality in order to feel content with it, even proud. We have used terms such as “democracy” and “freedom.” But, colonial subordination is not democratic; and the peoples subjected to imperialism are not free. Colonialism is a form of subordination, even slavery, since freedom and self-government are consubstantial. The less capacity the members of a community possess to govern themselves, the less free they are.

In previous works I confronted the dissociation of those who call themselves estadolibristas (pro-commonwealth).[1] For decades, panegyrists of the Commonwealth insisted that Puerto Rico was decolonized in 1952, and have even called the Commonwealth a “constitutional regime,” thus failing to discern the difference between form and substance. Such statements cannot be made without perpetrating great violence on concepts whose meanings are unambiguous.

One of the realities that the Popular Democratic Party has tried to ignore since the time of Luis Muñoz Marín (1898–1980) is that the E.L.A. is not a political status; rather, it is the third institutional permutation (at the “local” level) of the same colonial regime that has ruled since the United States took the archipelago from Spain. It shouldn’t have taken the U.S. Supreme Court to scuttle the claim that the E.L.A. is not colonial. [2] Vicente Géigel Polanco, exempt from dissociation and demagoguery, saw it in the early 1950s. Géigel expressed his intellectual honesty and his political denunciation in articles that were collected in his book La farsa del Estado Libre Asociado (The Farce of the Commonwealth). Gilberto Concepción de Gracia and the Puerto Rican Independence Party also made the corresponding denunciations while what is known as the E.L.A. was in the making.

The course of the legislative process, what is commonly called the “legislative history,” of the congressional law known as “Act 600” of 1950, was transparent: Puerto Rico was only authorized to design the structure of its “internal government,” subject to the approval of the U.S. President and Congress. That legislative body kept intact its sovereign power over us, as that power arises from the Treaty of Paris of 1898. This was acknowledged by governor Luis Muñoz Marín and then resident commissioner Antonio Fernós Isern in the hearings that took place before the corresponding congressional commissions on the bill that became Law 600. Of course, that statute did not put an end to the capitalist or institutional hegemony of the United States. On the contrary, it consolidated that domination.

Muñoz and others in the Popular Democratic Party (PPD, its Spanish acronym) went beyond industrializing and “modernizing” the archipelago, with the disasters that this brought: an urbanism based on the tyranny of the automobile and on building suburbs and hamlets, segregating cities and making them inhospitable, leading to uprooting and confinement. The populares also lied about what transpired in Congress in 1950–52, in part to be “good American citizens” by supporting U.S. lies and propaganda during the Cold War. They were also motivated by the desire to establish something with a semblance of permanence, a regime that would be attributed to them and their party. Hence not only their lies about the E.L.A., but also their disastrous appearance before the United Nations in 1953. They thus premiered the mythology of the “non-colonial” E.L.A.

We suffer the consequences of building on lies. Without ethics and veracity, everything ends up collapsing. What has been destroyed will have to be rebuilt. In the face of adversity, there is no other dignified path but action. There is no room for the pessimism of paralysis and conformism, unless we resign ourselves to collective suicide.

Origin and nadir of the notion of “generic consent”

The so-called local government of Puerto Rico has had an institutional scheme –the version of which, still in force, was inaugurated in 1952– and practices that have contributed to the survival of the colonial regime. This has been done in part through the imposition by that government of truths, of dogmas. The questioning of these dogmas, imposed from political power by colonial actors, has been a largely marginal and marginalized exercise, and even subject to all kinds of reprisals.[3]

In societies in which credos are imposed authoritatively, where their perplexed inhabitants take for granted the primacy of knowledge that is created from power, those who articulate criticisms and versions contradicting that official ideology have the difficult task of undermining the credibility of those dogmas. Articulated, repeated, and imposed from the spheres of political power and social prestige, they receive the endorsement of the economic elites and the media, and are reproduced and consolidated through complex social networks.

Mora v. Torres

The first court decision to discuss, and praise, so-called commonwealth status was Mora v. Torres.[4] Benjamín Ortiz, then one of the justices of the supreme court of Puerto Rico, issued the opinion in that case, acting as a U.S. district judge. (Again, it should be emphasized that the Commonwealth is not a “political status,” but is the name given to the governmental structure that Congress allowed to be established, replacing the structure of the Jones Act of 1917. An important part of that Jones Act remained unscathed, with the exotic name of Federal Relations Act, which is a colonial relations law imposed by the U.S. Congress. Puerto Rico’s political status is the same since the 1900 Foraker Act: a colony).

Ortiz was a member of the so-called “constitutional convention” that drafted the “constitution” of the commonwealth;[5] he was immersed in the PPD elite; and, in deciding this case, he fulfilled the political mandate of articulating a discourse that would give the E.L.A. the distinction of being the inaugurator of a new stage in the relationship between Puerto Rico and the United States. From then on, the courts would affirm for nearly five decades that the E.L.A. left behind the colonial character that the relationship had before 1952. The main basis they used to support this assertion is that Puerto Rican voters at the time approved both Law 600 of 1950 and the structure of the Commonwealth that was implemented in 1952. At best, such a vote was a turning point in colonial domination, insofar as it has been plausible ever since to claim that what exists since then is a colony by consent.

One of the weaknesses of the aforementioned conception is that such “consent” cannot bind the generations that have succeeded the voters of 1950. The most fundamental one, however, is that consensual colonial domination is still colonialism, and is still immoral and abusive. The slave remains a slave, even if he does not aspire to be freed.

In Mora, the plaintiff invoked the due process clause of the Fifth Amendment to the U.S. Constitution to challenge the validity of an administrative order of the Secretary of Agriculture of the E.L.A. government. The order set the maximum price for the sale of rice. Ortiz concluded that such due process clause applies to Puerto Rico, [6] but that its applicability is no longer based on the notion “that Puerto Rico is a possession, dependency, or territory subject to the plenary powers of Congress.”[7] Instead, it “continues to apply to Puerto Rico as part of the compact” that the People of Puerto Rico and the U.S. government allegedly entered into during the process that took place between 1950 and 1952.[8]

Of course, it was not necessary to enter into a discussion of the “basis of applicability” to Puerto Rico of the Fifth Amendment. So, Ortiz’s whole discussion of the nature of the E.L.A. was also unnecessary to resolve the controversy before him. Ortiz simply uses the occasion to inaugurate an entire discourse on the nature of the newly established E.L.A.

According to Ortiz, as part of such a “compact” the United States allowed Puerto Rico to enjoy “the full substance of self-government … and a plenitude of government by consent, realities that are incompatible with the previous status of possession, dependence, or territory.”[9] Of course, Ortiz’s claims are nonsense. In any case, the full substance of self-government could only be exercised under independence. Under the Commonwealth, Puerto Ricans have no say in how we are governed with respect to multiple areas vital to their lives and that of all people.

According to Ortiz, the approval of the E.L.A. was, among other things, the product of a quid pro quo: In exchange for achieving a degree of self-government, Puerto Ricans accepted and approved Act 600 and the Federal Relations Act.[10] In turn, the compact “does not allow for a unilateral amendment by either party to the Federal Relations Act.”[11] That wasn’t right either. That law has been unilaterally amended by Congress on several occasions, a legislative body that does not have to consult or ask permission to amend it.

The Mari Brás case

In its decision in the case of Ramírez de Ferrer v. Mari Brás[12], the Puerto Rico supreme court (which is not supreme, since the only “supreme” court in Puerto Rico is the one that sits in Washington, D.C., which can and has overturned decisions of the Puerto Rican court) articulates arguments that echo a particular discourse about the political reality of the country, which was inaugurated in the judicial sphere by Benjamín Ortiz in 1953. By 1997, when the Mari Brás case was decided, the years of enthusiasm and optimism had given way to stagnation and disenchantment. Despite this, Puerto Rico’s supreme court repeated the speech that Ortiz inaugurated 44 years earlier. The mendacity and want of historicity of the majority opinion in Mari Brás are apparent.

In addition to the erosion and discredit of that discourse at the height of 1997, events following that decision demonstrated once again who is sovereign in Puerto Rico. The U.S. government took the necessary steps to render irrelevant the Mari Brás decision, and thus reassert its power over “U.S. or American citizens” who “reside” in Puerto Rico. With that action by the U.S. State Department, the “Puerto Rican citizen” Juan Mari Brás never ceased to be an “American citizen.”

Juan Mari Brás, who was born on December 27, 1927 in Mayagüez, Puerto Rico, was a well-known lawyer, politician and consistent activist in favor of Puerto Rican independence. His political activism dates back at least to his college student years in the 1940s. He was expelled from the University of Puerto Rico for his participation in the 1948 strike. He is a graduate of American University’s School of Law in Washington, D.C. He was a co-founder and leader of the Movement for Independence (MPI) and the Puerto Rican Socialist Party (PSP). For decades, particularly in the 1960s and ’70s, the F.B.I. and the Puerto Rican police persecuted, harassed, and tried to intimidate him in multiple ways. [13] The abuses culminated in the kidnapping, torture, and murder of his 23-year-old son, Santiago Mari Pesquera, a monstrosity that occurred on January 26, 1976, and which the federal authorities and the E.L.A. did not care to investigate, much less solve.

On December 19, 1993, Mari Brás renounced his U.S. citizenship by means of an affidavit that he signed before a notary public in the municipality of Quebradillas. In that statement, he affirmed his status as a citizen of Puerto Rico as a natural consequence of his Puerto Rican nationality.[14] On July 11, 1994, he went to the U.S. Embassy in Caracas, Venezuela, where he renounced his U.S. citizenship, which he had acquired at birth. On that occasion, he submitted a copy of the aforementioned affidavit of renunciation of U.S. citizenship.[15]

The U.S. consul in Caracas issued a Certificate of Loss of Nationality of the United States, stating that Mari Brás was no longer a U.S. citizen. [16] On November 22, 1995, the Director of the U.S. Department of State’s Bureau of Consular Service gave his approval to Mari Brás’ resignation.[17]

In May, 1996, Myriam Ramírez de Ferrer, an activist seeking admission to Puerto Rico as a U.S. state, petitioned the State Elections Commission to prevent Mari Brás from voting in the Puerto Rican elections to be held in November of that year. [18] Ramírez argued that Mari Brás was no longer a U.S. citizen, and that the Puerto Rico Election Code requires such status for anyone who intends to vote in Puerto Rico. [19]

Ramírez’s challenge reached the judicial forum, where a Puerto Rican trial judge, in a judgment of October 21, 1996, declared that the U.S. citizenship requirement was unconstitutional, and dismissed Ramírez’s petition.[20] With the case already before the Puerto Rico supreme court, and with the November elections of that year approaching, the court ordered the Elections Commission to allow Mari Brás to cast his vote, and to consider his vote as contested (challenged) while the court decided the case.[21]

According to the majority opinion, authored by Judge Jaime B. Fuster (then a former resident commissioner, a post he held from 1985 to 1993), the court should determine whether there is a Puerto Rican citizenship, separate, and distinct, from U.S. citizenship, and from which emanates the right invoked by Mari Brás to vote in Puerto Rico’s elections.[22] According to Fuster, the outcome of the case depended on the “legal authority” of the entity known as the Estado Libre Asociado (E.L.A., or Commonwealth of Puerto Rico);[23] specifically, the authority of the government of Puerto Rico to regulate its electoral affairs.[24] In addition to determining whether there is such a thing as Puerto Rican citizenship –distinct and separate from U.S. citizenship– the court went on to decide whether such citizenship alone provides the right to vote in Puerto Rico.

Per Fuster, when the E.L.A. and the “compact” between Puerto Ricans and the U.S. government were adopted, the electors of the time made a “formal acceptance of U.S. citizenship,” which “significantly modified the relationship that had existed before between us and the U.S. nation. Hitherto there had been only an undoubted relationship of tutelage, originating in the unusual transfer of an entire people as spoils of war from one metropolis to another. … Since the creation of the E.L.A., the relationship has taken on … a new face, … because the authority thus demarcated that the United States would exercise over our country from then on would have at least a generic consent granted by the Puerto Rican people.” [25] If so, that’s some sizable blank check, signed by the voters of that time!

Fuster recycled the arguments made in 1953 by Benjamín Ortiz. In 1997, disenchantment with the commonwealth project did not allow or deserve a more vigorous or novel defense. Fuster even acknowledges that many authors –particularly José Trías Monge, former Chief Justice of the Puerto Rico supreme court– have concluded that Puerto Rico remains, as it was before 1952, a colony of the United States; and that the “consent” given as a result of the 1950–1952 process for Congress to continue to legislate unilaterally on Puerto Rico was “excessively generic.”[26] Euphemisms are part of the way we express ourselves.

Fuster went on to theorize that the approval by referendum of Act 600, and then in 1952 of the constitution of the commonwealth, meant that “[t]he law that had been legislated unilaterally by Congress in 1917 was accepted with full formality for the first time by the people of Puerto Rico themselves in 1950 and 1952, and has become the cornerstone of the continuing bond between the U.S. nation and the Puerto Rican political community.”[27] Such an expression pales in comparison to the one that immediately follows: “The people of Puerto Rico also accepted the continued validity in the country of the sphere of authority over Puerto Rico, which still persists in the hands of the federal government. It is because we are citizens of the United States that Congress can extend to Puerto Rico the same legislation that it validly enacts to govern the 50 states of the Union. If it were not for that citizenship, which the generality of Puerto Ricans now holds in a clearly free and voluntary manner, the authority that Congress exercises in Puerto Rico would be merely a simple colonial power, illicit and tyrannical, as is the nature of such power.” [28]

Fuster thus undermines the true meaning of the concept of “citizen”, which refers to those who participate, or have the possibility of participating, in the political processes that concern them. In fact, he goes on to stress that “it is taken for granted that the right to vote in a jurisdiction belongs precisely to those who are citizens of that jurisdiction.” [29] He also concluded, on behalf of the court’s majority, that there is such a thing as a citizenship of Puerto Rico, separate and independent from U.S. citizenship, from which emanates the right to vote for those who, like Mari Brás, were born in Puerto Rico and are subject to its jurisdiction. Of course, he is forced to acknowledge that such citizenship of Puerto Rico “is not, evidently, the national citizenship of an independent country or state.” But, he adds, “it doesn’t mean mere domicile either. Rather, it is a citizenship that corresponds to the political collectivity that is part of a federal system. In such federations, the duality of citizenship is inherent.” [30]

In 1997, that claim that Puerto Rico is part of a federal system was, and is, in every way implausible. Of course, American federalism is more than qualified by the reality of the supremacy of the Constitution and federal laws, and by the nature of the powers of the national government. But, before and after 1952, Puerto Rico has been subject to the authority –sovereignty– of the U.S. government, so it can legislate on aspects of life in Puerto Rico that are forbidden to it with respect to the 50 states. Above all, it can make all sorts of exceptions with respect to Puerto Rico that it would not be able to make with respect to any state. It so happens that this is precisely one of the elements that characterize U.S. imperialism: the existence of a perennial state of exception with respect to Puerto Rico and Puerto Ricans.

According to the judge, that “citizenship of Puerto Rico” no longer rests on the congressional legislation that originally established it in 1900. [31] But the fact is that, like the three structural permutations of the Puerto Rico “local” government, “Puerto Rican citizenship” was a congressional creation. Section 7 of the Foraker Act of 1900 declared as “citizens of Puerto Rico” all inhabitants who “were Spanish subjects on the eleventh day of April, [1899], and then resided in Puerto Rico, and their children born subsequent thereto.” As such citizens of Puerto Rico, they would be entitled to “the protection of the United States,” and would constitute, together with the U.S. citizens residing in Puerto Rico, “a body politic under the name of the People of Puerto Rico, with the governmental powers as hereinafter conferred, and with power to sue and be sued as such” in the relevant courts of justice.

Since 1952, Fuster continued, the “legal basis” of that Puerto Rican citizenship is “the Constitution of the E.L.A. itself,” and such citizenship is “an indispensable element of the autonomous regime that was established in the country in 1952 by the will of the Puerto Rican people themselves. Its most fundamental origin, of course, lies in the incontestable fact that Puerto Rico is a people, a country formally organized into a political collectivity, so that the people who form it are its citizens.”[32] That is precisely what has never been recognized by the United States: that Puerto Rico is a nation (Fuster writes “a people”) that, as such, needs to be organized as a political collectivity (a nation-state). But Fuster and the judges of the majority pretended it to be enough that we were authorized to create the structure of the colonial state, through a “constitution,” while colonial subordination remained intact.

An obvious problem with the judge’s assertions is that the U.S. government’s laws and court decisions about the citizenship issue are the only word on the civic status of Puerto Ricans.[33] There was a kind of mass “naturalization” in 1917, and subsequent laws establish and clarify that those born in Puerto Rico are born U.S. citizens. The category of “citizens of Puerto Rico” in the Foraker Act, later included in the so-called Political Code of Puerto Rico, “did not involve any recognition of Puerto Ricans as having an independent nationality of their own.” [34] The U.S. Congress “created that category expressly as another subordinate status … explicitly because America’s political and intellectual leaders regarded Puerto Ricans as not just a separate but as yet another unequal race, incapable of full self-governance.” [35]

Fuster and the judges of the majority used Mari Brás’ claim to reaffirm that they are members of a judiciary that in turn is part of a “constitutional regime,” that of the E.L.A.[36] At the same time, they implied that Mari Brás and other pro-independence supporters need the institutions of the E.L.A. to vindicate their rights. Apart from the violence that must be inflicted on the applicable political and legal doctrines in order to affirm that the E.L.A., or “commonwealth,” is a “constitutional regime,” it is noteworthy that in the face of determinations made by the U.S. government after Mari Brás, that 1997 decision became irrelevant.

The U.S. government revoked its recognition that Mari Brás had lost U.S. citizenship, and instead declared that he remained a U.S. citizen under the applicable laws, as his return to, and presence in, Puerto Rico –which “is part of the United States”– contradicted his stated intention to renounce such civic status. According to these authorities, in order to be consistent, Mari Brás had to stay in Venezuela and apply for political asylum, or apply for and obtain such asylum in that or another foreign country. By failing to do so, he failed to complete his citizenship waiver process.

Among other realities, the decision in Mari Brás shows that it is wrong to expect protection from institutions that have no real power. Giving Fuster and his colleagues the opportunity to gain political capital, and then end up in the same place he started –with the citizenship of the empire– was not exactly a good result for Mr. Juan Mari Brás.

The Vicissitudes of “Generic Consent”: The Death Penalty

Chapter 2 included a discussion of the impact om the thirteen colonies of Lord Mansfield’s decision in Somerset v. Stewart.[37] I mentioned that the context of that case included the growing disaffection of the elites of those North American British. From London, parliament was legislating new taxes, as well as trade and production restrictions. These and other measures were not welcomed by the elites of the colonies.

Mansfield’s decision in Somerset seemed to imply that Parliament possesses the authority to abolish slavery in the colonies. [38] Mansfield declared that slavery can only exist if it is sanctioned by law, while reaffirming the notion of the supremacy of the British Parliament over the colonies: Parliament is sovereign throughout the empire, he insisted. Mansfield had asserted years earlier, as a member of the House of Lords, that –although the inhabitants of the colonies had no representation in London– the British Parliament had the same authority over the inhabitants of the colonies as it did over the inhabitants of Great Britain and those of the rest of the empire (whether or not they voted to send representatives to Parliament).

The U.S. judiciary has articulated a doctrine with respect to Puerto Rico, equivalent to the one Mansfield embodied, emphasizing the supremacy of the U.S. Congress. In 2000, Puerto Rican federal judge Salvador Casellas attempted to articulate an exception to that supremacy without political representation, ruling that U.S. government prosecutors could not request that a jury consider imposing the death penalty on a convicted felon. As a primary rationale, Casellas contended that laws authorizing such action are “locally unenforceable” under Section 9 of the Federal Relations Act, due to the absence of political participation. [39] The judge wrote:

It shocks the conscience to impose the ultimate penalty, death, upon American citizens who are denied the right to participate directly or indirectly in the government that enacts and authorizes the imposition of such punishment. … If the qualitative difference of the death penalty has been sufficient to require more reliable procedures for its imposition, it certainly ought to be sufficient to require that its availability as a punishment be grounded, in its origin, on the consent of those whose rights may be affected by its imposition, such consent expressed through their participation in the political process as a manifestation of their free will. [40]

The judge also asserted that the “generic consent” to be governed from Washington does not raise “major constitutional concerns,”[41] while any change in “the relationship” between Puerto Rico and the United States is a political issue –a relationship that is defined, among other realities, by the absence of electoral participation in the U.S. federal state. Therefore, in the context of opinion and the current regime, Casellas’ expressions were too far-reaching and, at the same time, fell short.

If “generic consent” is constitutionally and democratically sufficient, then Casellas has no reason to object to the imposition of the death penalty. But, if such an imposition is objected to on the basis of that absence of political participation –typical of a colonial regime, of course– then all U.S. laws should be inapplicable to Puerto Rico, at least until that illegitimacy is corrected. In view of this, the presence in Puerto Rico of U.S. governmental institutions, including the jurisdiction of the district court that Judge Casellas held, suffers from the same democratic illegitimacy that afflicts legislation approved by an entity that is not representative of the people of Puerto Rico –and, let’s be real, that does not care and has never cared about them. Why should Congress care?

Casellas identified the problem posed by legislation without representation and by the implementation of norms that are unrelated to what should be the political pact of a representative democracy. By means of this pact, the governed consent to be so precisely because they participate in the continuous formation of the State, through periodic and free elections. But, the absence of such participation makes the entirety of the U.S. hegemonic structure in Puerto Rico illegitimate. Thus, Judge Casellas fell short in prescribing a partial remedy, limited to the application of the death penalty. On the other hand, there seems to be no doubt that the remedy to colonial ignominy will come not from the courts –although it has not come from the political process either.

In overturning Casellas, the First Circuit ruled that “it would anomalous for Congress to grant the people of Puerto Rico U.S. citizenship and then not afford them the protection of federal criminal laws.” [42] In doing so, that appellate court ignored the fundamental anomaly of labeling as “citizens” human beings who do not participate in the decision-making process of the state that governs them and that determines most of the material and political conditions under which they live. Such an anomaly is the antonym of freedom. The imperial republic is not about freedom, particularly concerning those who are not really “American” in the ethno-national sense.

Thus, any aversion that Puerto Ricans have to the death penalty cannot be translated into the obtention of a judicial remedy protecting such rejection. Like Lord Mansfield in 1772, the American constitutional system has never given way to claims of particular treatment, even if such claims are rooted in the problem of the absence of legitimacy to govern human beings. The English colonies solved the impasse which posed the Mansfield decision with a war of independence. Puerto Rico, on the other hand, has remained paralyzed; it has remained in a state of subordination and unfreedom, with all that such status implies in abuse, exploitation and obliteration of self-respect.

Other Vicissitudes: Colonialism and Civil Disobedience

Puerto Rico’s subordination to the United States has always conflicted with moral, political, and legal principles called to inform and limit the exercise of power. It has been found significant that Puerto Ricans do not participate in U.S. political processes. At the same time, there are plenty of reasons to be skeptical about the real impact that such participation would have.

Thousands of young Puerto Ricans were drafted to fight in the Vietnam War (1964–1975). Most were not volunteers, as the U.S. Congress legislated to establish conscription. A federal judge was confronted with the contradiction that young men are exposed to compulsory military service in the U.S. armed forces, without being able to participate by voting in the government that conscripts them into the military. That problem became acute, given the circumstances before the judge: a young Puerto Rican man criminally charged with refusing to be drafted into the U.S. military to fight in Vietnam.

Edwin Feliciano Grafals resisted the draft. For this refusal, the relevant authorities of the U.S. government charged and prosecuted him in the U.S. District Court in Puerto Rico. A jury found young Feliciano Grafals guilty of “refusing to submit to the draft.” Puerto Rican federal judge Hiram A. Cancio sentenced him to one year in prison. Months later, Judge Cancio reduced that sentence to just one hour of confinement. In an opinion issued on January 23, 1970, Cancio explained his reasons for reducing the prison sentence. [43]

In the United States, cases such as that of Feliciano Grafals captured the attention of legal scholar Ronald Dworkin. The central question Dworkin posed was what should be the response of the authorities when citizens disobey a law such as conscription. Specifically, this author was interested in exploring what the government’s position should be in instances in which reasonable people question the validity of a law or official action, on the grounds that it infringes civil rights or conflicts with moral principles.

Dworkin argued that the presence of good arguments questioning the moral and legal validity of official actions justifies social and governmental tolerance of civil disobedience. As it is discussed further, it is remarkable that, acting less than a decade before Dworkin published on this matter, Judge Cancio’s act of leniency toward young Feliciano Grafals had rested on such consideration.

Rights in the Strong Sense

It is fitting to first go through Dworkin’s reasoning. [44] The rights recognized in the Constitution are “moral rights”, which have received legal recognition, becoming “juridical” (or “legal”) rights. [45] If civil rights are to be “taken seriously,” governments must allow room for civil disobedience –that is, for resistance to laws that are reasonably and plausibly considered to limit or violate moral rights. The government’s position on the scope of such rights is not necessarily correct, and it is to be expected that reasonable people will have different views on the matter in particular instances.

Dworkin elaborated that “those Constitutional rights that we call fundamental” have to be “rights against the Government in a strong sense; that is the point of the boast that our legal system respects the fundamental rights of the citizen.”[46] If it were otherwise, the claim that one has rights would lose “the political importance it is normally taken to have.”[47]

When we conceive of rights in a weak sense, we see the challenge of a law as a matter of principle, perhaps deserving of respect; but we also believe that the government is justified in accusing and punishing the defiant. If rights are assigned a “strong” meaning, it is not enough to say that a person has our respect for daring to violate the law in obedience to her moral principles, and at the same time take the position that the state is justified in punishing her. Dworkin urges us to go further, and ask ourselves whether the government would be wrong to stop or punish that person’s exercise of disobedience.

For Dworkin, there are circumstances in which one possesses the “right,” in the strong sense, to disobey the law. By way of illustration, since we have a moral right to free speech, we also possess “a moral right to break any law that the Government, by virtue of [that] right, had no [authority] to adopt.”[48] Therefore, disobeying such a law is not separate from the right to speech, while the act of disobedience is not a matter of “conscience,” but of civic duty. [49] That is to say, it is not merely a matter of moral conscience, but of civic conscience, of exercising the civic duty of questioning authority on the basis of considerations about which the state must be alerted, in the name of the idea that the government must allow as much space as possible for the questioning of its decisions, and for dissent.

Dworkin’s conception has the virtue of minimizing somewhat the rigidity of the dualism of “rulers and ruled”, since in his vision the governed participate in the task of establishing the norms of social coexistence. In turn, such an approach is consonant with the concept of freedom, which emphasizes that to be free is to be an active participant in the governance of the community of which one is a part.

Moreover, if it is true that citizens have rights, then the general welfare or convenience cannot be grounds for limiting rights, even when the abstract benefit of “law and order” is adduced.[50] To claim that a society protects individual rights would be an empty act, merely rhetorical, if sacrifices are not made to allow them to be exercised, even renouncing any marginal benefit that society receives by limiting those rights whenever it is merely convenient. [51] If we use Dworkinian concepts to evaluate the degree of exercise of civil rights in Puerto Rico, with emphasis on the right to protest, to march, to demand from the government certain courses of action, we would have to conclude that such exercise is extremely diminished.

Dworkin’s conceptualization can be used by those who claim to have the right to exclude from their businesses, and from their social life in general, people whose very presence offends them. According to them, if the state were to force them to have contact with human beings they find offensive or immoral, it would carry out an undue and unconstitutional intrusion into their lives: it would be an unacceptable intrusion into the exercise of their “freedom.” Indeed, that was the argument of those who insisted on maintaining “racial” segregation in the United States, which carried the day in the late 19th century, and triumphed in the long run to the extent that attempts at integration have failed. Social, economic and urban life remains segregated.

Dworkin himself would note that such position signifies a rejection of the very existence of a pluralistic or “open” society, in favor of a closed, exclusionary one. Such a closed society would be defined by the presence of human beings with characteristics ranging from the mere appearance (e.g., skin color, i.e., the amount of melanin) or psychology (e.g., sexuality) of millions of human beings, to the exclusion of others –the so-called “minorities”– with other characteristics. That is, these arguments are illiberal and dangerous, given the experiences humanity has had under regimes that impose a supposed essence of “the nation” and its members. Dworkin, a liberal constitutionalist, presumed the existence of a broad consensus on the need for a coexistence that implements the cardinal principle of human dignity. Today in the United States, and elsewhere, it does not seem justified to presume that this consensus is solid.

Cancio the lenient and the consent to subordination

In seeking the dismissal of his federal indictment, Edwin Feliciano argued that he had not consented to U.S. laws ruling over his life, because he lacked rights of participation in the American political process. He therefore exposed the most fundamental problem of colonial rule, that of democratic illegitimacy. In response to that argument, Judge Cancio relied on the notion –already judicially articulated in 1953– that, by approving the structure of what we call the Commonwealth, Puerto Ricans provided a “generic consent” to abide by laws passed by a government that they do not contribute to electing. [52] That is, the U.S. government received that consent from us as the price to pay for allowing us to adopt a structure with governmental powers similar to those of the states. In exchange for the “privilege” of exercising those prerogatives, the argument goes, Puerto Ricans “consented” to the continuous exercise of U.S. government powers, including the enforcement of compulsory military service statutes.

The judge recognized, however, that reasonable people can conceive, in good faith, that such consent is insufficient to allow the U.S. government to impose legislation in Puerto Rico on matters as vital as compulsory military service. [53] In doing so, it appeared to be aware of the shortcomings of the notion of “generic consent”. I argue that, rather than being deficient, this notion has been part of a fallacious, anti-democratic discourse that is foreign to the basic principles of modern constitutionalism.

Cancio also hinted that he was aware of the flimsiness of claiming that in 1952 Puerto Rico ceased to be a colony. The judge noted that the legislative record of the congressional process from 1950 to 1952 is “sufficiently dim for a respectable and intelligent person to believe” that the colonial status remained in place. [54] We know, however, that this is much more serious: that legislative history defeats the demagogic pretense that the colony ceased in 1952.

The judge thus stated that the “clarification of the political relations between Puerto Rico and the United States will do no harm to anyone and will likely do a great deal of good to the common wellbeing.” [55] and that “it would not be a bad idea” to extend the military draft “only through the specific consent of the people of Puerto Rico. Nor would declaring an amnesty for those who have violated the present law in good faith.”[56] Note the similarity between this remedy, or partial remedy, and the one prescribed by Judge Casellas in the case of the death penalty. Dworkin would likely approve.

The dilemma of going to jail or participating in a massacre

The human and ecological devastation caused by the Vietnam War resulted in the death of nearly 60,000 U.S. soldiers. On the Vietnamese side, one million fighters and two million civilians were killed. The ecological damage was caused mostly by the bombs, and chemical and napalm weapons, used by the U.S. military.

Moral objections to the Vietnam War were articulated in legal language, including that the use of such weapons violated treaties ratified by the United States; that Congress had never declared war, as required by the Constitution; and that the military draft was administered unevenly, to the detriment of young people with fewer economic resources –which also meant a disparate impact on “racial” lines.

According to Dworkin, the Vietnam-era draft cases presented “special arguments for tolerance” of civil disobedience, since it was more than plausible that the war and the draft violated moral and legal principles. [57] Dworkin argued that such circumstances justified refraining from prosecuting those who objected to military conscription on grounds of conscience, or because of the constitutional and moral problems posed by such conscription and the war itself.

In the case of Feliciano Grafals, Judge Cancio exercised his discretion by reducing the sentence he had originally imposed, with a view to minimizing the effects of an unjust situation. In Puerto Rico, the aforementioned objections to war and conscription were added to a reality of colonial subordination, in which the island and its inhabitants were, and are, invisible and irrelevant to U.S. political actors.

But having the right to vote for the president of the United States and for representatives in Congress has never been a guarantee of fair, equitable, or even humane treatment. Prominent Americans were indicted for conduct that merely expressed their conviction that young men should resist being recruited to perpetrate genocidal atrocities against a poor people in Southeast Asia. [58] Thus, even if Puerto Ricans at the time had the right to vote for the president of the United States or for senators and representatives sitting in Congress, their moral objections to the war –as in the United States– would have been ignored or suppressed. Voting is not enough to give legitimacy to government actions, nor is it –should not be– the alpha and omega of citizen participation in political decisions.

Finally, power as domination is an instance of power imbalance; while abuse of power takes place in situations in which there is an asymmetry in the faculties to act and to negotiate. U.S. imperial domination over Puerto Rico has generated all kinds of abuses and moral dilemmas. The Vietnamese people exercised the right to end their colonial subordination, the same right that we Puerto Ricans were unwilling or unable to exercise, while at the same time we were recruited to use violence aimed at preventing another people from exercising it.

[1] Roberto Ariel Fernández Quiles, El constitucionalismo y la encerrona colonial de Puerto Rico (2004). See also Roberto Ariel Fernández, El derecho constitucional como imperativo: La subordinación política de Puerto Rico y la convocatoria a una convención constituyenye, 34 Rev. Jur. U.I.P.R. 577 (2000); _____, Algunos apuntes críticos a un libro reciente: Estado Libre Asociado del Siglo 21, de Ramón Luis Nieves, 66–1 Revista del Colegio de Abogados de Puerto Rico 49 (2005); _____, “As We May See Fit”: United States Colonial Rule Over Puerto Rico, 68–1 Revista del Colegio de Abogados de Puerto Rico 79 (2007 ).

[2] See, e.g., Commonwealth of Puerto Rico v. Sanchez Valle, №15–108, 579 U.S. ___ (2016).

[3] From the first electoral victories of the Popular Democratic Party, power was reformulated from a coercive notion to one of social discipline, while at the same time a new discourse was imposed: “The control exercised by Muñoz and the Popular Democratic Party allowed them, from 1940 onwards, the creation of new truths, new conceptions of being Puerto Rican; identities and cultural constructions were forged according to the explanation that Muñocismo was elaborating. The Puerto Rican society that was born under the shadow of those strategies grew up thinking of them as creeds, as infallible truths; muñocista management had become knowledge and power.” Luis A. López Rojas, Luis Muñoz Marín y las estrategias del poder. 1936–1946 14 (1998). See also Arcadio Díaz Quiñones, La Memoria Rota 75 (1993): “The country, in the fifties, had a gag in place; populist developmentalism demanded social discipline. The opposition was somewhere between perplexity and bewilderment. It was an authoritarian climate.” Writing in 1960, Marqués stated that, “under the epithet of ‘democratic’ there moves docilely, without any difficulty, a gigantic political machine, whose vital fuel is the authoritarian boss.” René Marqués, El puertorriqueño dócil y otros ensayos 172 (4th ed. 1993). (The translations are mine).

[4] 113 F. Supp. 309 (D.P.R. 1953), confirmed in Mora v. Mejias, 206 F.2d 377 (1st Cir. 1953). See also Figueroa v. People of Puerto Rico, 232 F.2d 615 (1st Cir. 1956); Americana of Puerto Rico, Inc. v. Kaplus & Sons, 368 F.2d 431 (1st Cir. 1966); Cordova v. Chase Manhattan Bank, 649 F.2d 36 (1st Cir. 1981).

[5] 1 Diario de Sesiones de la Convención Constituyente de Puerto Rico 1 (1961).

[6] Mora, supra note 5, 113 F. Supp., at 310; 319.

[7] Mora, at 319.

[8] Id.

[9] Mora, at 314.

[10] Mora, at 313.

[11] Mora, at 314–315. Of course, Congress has unilaterally amended that law on several occasions. After all, it is a federal statute like any other.

[12] 144 D.P.R. 141 (1997). For lucid and vigorous criticism, from different perspectives, to the decision in Mari Brás, see Richard Thornburgh, Puerto Rican Separatism and United States Federalism, in Foreign in a Domestic Sense: Puerto Rico, American Expansion and the Constitution 349 (Christina Duffy Burnett & Burke Marshall, eds. 2001) (hereinafter “Foreign in a Domestic Sense”); and Rogers M. Smith, The bitter roots of Puerto Rican citizenship, en Foreign in a Domestic Sense 373. In an earlier work, I reacted to Thornburgh’s and Smith’s arguments. See Roberto Ariel Fernández Quiles, “As We May See Fit”: United States Colonial Rule over Puerto Rico, 68–1 Revista del Colegio de Abogados de Puerto Rico 79, 90–94 (2007).

[13] See, e.g., Ronald Fernandez, supra note 3, at 206–208.

[14] Mari Brás, supra note 13, 144 D.P.R., at 150.

[15] Id.

[16] Id.

[17] Id.

[18] The candidates in each election in Puerto Rico seek to hold the public offices of governor, resident commissioner in Washington (who has a voice but no vote in the House of Representatives of the U.S. Congress); senators and representatives to the house (the members of Puerto Rico’s bicameral legislature); and the mayors of the 78 municipalities.

[19] Mari Brás, 144 D.P.R., at 152.

[20] 144 D.P.R., at 151–152.

[21] Id.

[22] 144 D.P.R., at 153.

[23] 144 D.P.R., at 154.

[24] Id.

[25] Mari Brás, 144 D.P.R., at 192–193.

[26] 144 D.P.R., at 192.

[27] 144 D.P.R., at 191–192.

[28] 144 D.P.R., at 175.

[29] 144 D.P.R., at 202.

[30] 144 D.P.R., at 200–201.

[31] 144 D.P.R., at 202.

[32] Id.

[33] See, e.g., Thornburgh, supra note 13, at 366–370.

[34] Smith, supra note 13, at 379.

[35] Smith, supra note 13, at 380.

[36] Mari Brás, 144 D.P.R. at 157, 159.

[37] 98 Eng. Rep. 499 (1772).

[38] So, to the discontent that already existed, Lord Mansfield’s decision added the fear that the British government would abolish slavery. To the principle of no taxation without representation would be added the notion that the colonists should decide on their economic life; not a distant parliament to which the colonies did not send representatives.

[39] U.S. v. Acosta Martínez, 106 F. Supp. 2d 311 (D.P.R. 2000).

[40] Acosta Martínez, 106 F. Supp. 2d, at 326–327. Later in this chapter, I discuss how another Puerto Rican federal judge had dealt with the problem of the colonial regime’s lack of democratic legitimacy; on that occasion, in the context of the Vietnam War and military conscription.

[41] 106 F. Supp. 2d, at 326.

[42] U.S. v. Acosta-Martinez, 252 F.3d 13, 21 (1st Cir. 2001). The opinion was written by Judge Sandra Lynch. For a critical and detailed discussion of Casellas’ and Lynch’s views, see Roberto Ariel Fernández Quiles, El Constitucionalismo y la Encerrona Colonial de Puerto Rico 104–127 (2004).

[43] United States v. Feliciano-Grafals, 309 F.Supp. 1292 (D.P.R. 1970).

[44] Ronald Dworkin, Taking Rights Seriously (1978).

[45] Dworkin, supra note 44, at 184–186; 190.

[46] Dworkin, at 191.

[47] Dworkin, at 192.

[48] Id.

[49] Id.

[50] Dworkin, at 193.

[51] Id.

[52] United States v. Feliciano-Grafals, supra note 43, 309 F.Supp., at 1296.

[53] 309 F.Supp., at 1296.

[54] 309 F.Supp., at 1300.