Introduction
In Puerto Rico and the Right of Accession, Joseph Blocher and Mitu Gulati highlight various ways in which Puerto Rico’s sui generis—and uncertain—relationship with the United States impairs Puerto Ricans’ political standing. Blocher and Gulati claim that “the people of Puerto Rico[] … have a legal right to determine their own futures vis-à-vis their colonial powers”[1] and that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[2] Blocher and Gulati set forth persuasive arguments for why Puerto Rico’s status quo as an unincorporated territory is not sustainable as a matter of international law, constitutional theory, or politics.
What the authors make less clear, however, is the nature of the particular entitlements that Puerto Ricans could seek to assert in moving toward a more permanent resolution. Specifically, Blocher and Gulati do not explicitly distinguish between the various rights that Puerto Ricans have as a group and those that they have as individuals. This essay examines the distinction between group rights and individual rights in relation to disputes about Puerto Rico’s status.
In general, group rights—sometimes called collective rights—are rights that are held jointly by a group of people. Group rights are exercised or waived by the group as a whole. By contrast, individual rights are held severally by each member of the group. The mere fact that a right is held by someone in virtue of his or her group membership does not make it a “group right” in the relevant sense. A right may be individual in nature even if it is held incident to group membership.[3]
A potential source of confusion is that group and individual rights need not be mutually exclusive. A person may hold an individual right to something and yet also be a member of a group that holds a collective right to that same thing. Political rights, for example, may attach to both individuals and groups consisting of those same individuals. Arguably, this is also the case with Blocher and Gulati’s articulated “right of Puerto Rican accession.”
Distinguishing Group and Individual Rights: An Example
Before turning to the specifics of the Puerto Rico context, a hypothetical may help illustrate how a single political process can encompass both group and individual rights. Suppose a city has a tradition of holding a parade every Columbus Day. The city has a policy that grants every high school in the area the right to send a student marching band to perform in the parade. However, in recognition of the moral controversies surrounding this holiday, the policy further provides that each high school’s participation must be approved by the school’s student body.
In describing the rights created by the Columbus Day parade policy, we might say that the policy gives high school students a right to decide whether or not to participate in the parade. This is surely true. But, upon reflection, we can readily notice that this “right” has both an individual and a group component.
If Rydell High is one of the schools covered by the Columbus Day parade policy, we might say that Rydell has a right to send its marching band to the parade. This is a group right held by Rydell in that only the school as a whole can decide whether to send its band or not. No individual student holds this right. On the other hand, if Rydell’s school policies give every member of the student body the right to vote on whether to participate in the parade, this right is an individual one, because it is held and exercised by each individual student. Note that the student right to vote in this scenario is individual even though it is fully dependent on the student’s membership in Rydell’s student body. Finally, we might observe that if Rydell’s student body were to vote against sending its band to the parade, no individual Rydell student could then assert a right to participate in it. This is because the right to participate in the parade is a group right held (and waived) by Rydell High, rather than an individual right that can be asserted by any individual student.
The lessons of this example are that the seemingly simple notion of a right to participate can consist of a combination of group and individual rights that should not be elided and that carefully distinguishing among these rights is necessary to understand who holds them and can validly assert them.
A Taxonomy of Puerto Rican Group and Individual Rights
Analyzing the rights relevant to the Puerto Rico problem is further complicated by the fact that Puerto Ricans are members of two groups that are pertinent to our discussion. On the one hand, they are residents and citizens of the Commonwealth of Puerto Rico. On the other hand, they are also citizens of the United States. Thus, assuming that membership in each of these polities implicates both group and individual rights, we can identify at least four potential sets of rights that are relevant to Puerto Ricans’ ability to determine the territory’s status relative to the United States: (1) the group rights of Puerto Ricans as a people; (2) the individual rights of Puerto Ricans held in virtue of their status as residents and citizens of Puerto Rico; (3) the group rights of Puerto Ricans as citizens of the United States; (4) and the individual rights of Puerto Ricans held in virtue of their U.S. citizenship.
Group Rights of Puerto Ricans as a People.
To the extent that Puerto Ricans can be regarded as a people or polity, they may have a group or collective right to self-determination.[4] The sources of this right may include Puerto Rico’s compact with the United States (“the 1952 Compact”), or principles of international law.[5] For example, the right to self-determination is clearly a group right insofar as no individual person can lay claim to Puerto Rican statehood or independence. Rather, it is the people of Puerto Rico who may decide collectively which status to pursue.
Individual Rights of Puerto Ricans qua Puerto Ricans.
The group right to self-determination held by Puerto Ricans as a people presupposes some method for aggregating or consolidating the judgment of individuals into a single expression of will. In other words, the “will of the people of Puerto Rico” operates as a function of the wills of individual Puerto Ricans. That function is presumably defined by the Puerto Rican Constitution. If this is correct, then every Puerto Rican has an individual right, guaranteed by the Commonwealth’s own Constitution, to vote for (or otherwise register) his or her political preference with regard to Puerto Rico’s status vis-à-vis the United States. In short, every Puerto Rican has an individual right to participate in the Puerto Rican people’s exercise of their group right to self-determination.
Individual Rights of Puerto Ricans qua U.S. Citizens.
As Blocher and Gulati explain, the Jones Act of 1917 conferred U.S. citizenship on Puerto Ricans,[6] and a subsequent statute provided that all Puerto Ricans born in the territory after January 13, 1941, would have the status of natural-born U.S. citizens.[7] U.S. citizenship status is held by individual persons, not Puerto Ricans as a group, even though their citizenship status may be attributable to their membership in that group. Thus, the rights that attach to this status are individual rights. These rights are determined by applicable federal law, including the U.S. Constitution.
Group Rights of Puerto Rican U.S. Citizens.
Although not explicitly discussed by Blocher and Gulati, it is conceivable that Puerto Ricans hold—or may come to hold—certain collective rights that are unique to Puerto Rican U.S. citizens. For example, setting aside the question of whether any such right exists in current law, one might argue that Puerto Rican U.S. citizens should have a group right to certain forms of representation in U.S. politics. Thus, one might argue that Puerto Ricans hold not only a group right to self-determination qua Puerto Ricans, but also a group right qua Puerto Rican U.S. citizens to participate in any U.S. process that might determine the territory’s status. That is to say, U.S. citizens who are Puerto Ricans arguably should have a collective right to participate in any decision of the United States that would determine the future status of Puerto Rico. This right would be distinct from Puerto Ricans’ group right to self-determination qua Puerto Ricans insofar as the latter right pertains to the decision of the Puerto Rican people to commit themselves to a chosen political status with respect to the United States.
Implications
The foregoing differential analysis is primarily meant to clarify the distinctions among the four categories of rights identified, rather than to establish the existence of any particular rights within those categories. The basic point is that some of Blocher and Gulati’s claims—such as “the people of Puerto Rico … have a legal right to determine their own futures,”[8] or “Puerto Ricans should be seen as legally entitled to decide their status for themselves”[9]—can be interpreted in multiple ways. First, such claims might refer either to individual or collective rights. Second, they might involve entitlements relating to political decisions of Puerto Rico, or to political decisions of the United States.
Observing and maintaining these distinctions is crucial, because each category of rights has a different legal foundation. The individual rights of Puerto Ricans qua Puerto Ricans will primarily depend on the Puerto Rican Constitution and international law. Meanwhile, the collective rights of the Puerto Rican people may have their strongest basis in agreements between Puerto Rico and the United States, and perhaps in principles of international law as well. But the individual and group rights of Puerto Ricans qua U.S. citizens will depend on federal statutory and constitutional law.
Clarifying the particular right under discussion helps to avoid conflating divergent legal frameworks when evaluating contested claims about that right. In the particular context of Blocher and Gulati’s theory of accession, paying attention to these differing frameworks may help reveal potential gaps in the authors’ argument. For example, the authors draw on principles of international law to conclude that “Puerto Ricans should have the ultimate say in whether to be more closely associated with the United States.”[10] International law arguably provides the basis for the group right of Puerto Ricans as a people to determine their own political status. What international law-based arguments cannot do, however, is establish that denying accession would infringe upon the individual (and perhaps group) rights of Puerto Ricans as U.S. citizens. More is needed.
It is important to recognize the distinctions among the various group and individual rights of Puerto Rican U.S. citizens, but we should also be attentive to the possibility that some of these distinct rights could be mutually reinforcing. One set of rights might even entail another. For example, consider the claim, attributed by Blocher and Gulati to President Donald Trump, that Puerto Ricans, as “[U.S.] citizens, should be entitled to determine for themselves their political status.”[11] Among other things, this statement suggests a chain of inference leading from Puerto Ricans’ individual rights as U.S. citizens to a group right—deriving from their U.S. citizenship—to determine the political status of the territory. Building the links in this chain of inference would require careful analysis and application of the principles that give content to individual rights of citizenship, such as equal protection, due process, and guarantees of political participation. The specifics of such a project are outside the scope of this essay. But what I am suggesting is that the strongest argument for a group right of Puerto Rican accession may be one that is forged from the individual rights of Puerto Rican U.S. citizens.
[1] Joseph Blocher & Mitu Gulati, Puerto Rico and the Right of Accession, 43 Yale J. Int’l L. 201, 205 (2018).
[2] Id. at 207.
[3] See generally Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights 45-46 (1995) (discussing the ambiguity of “collective rights” and differentiating between group-differentiated rights accorded to individual members of the group versus the group as a whole); Group Rights, The Stanford Encyclopedia of Philosophy Archive (Edward N. Zalta et al. eds., 2016), http://plato.stanford.edu/archives/sum2016/entries/rights-group/.
[4] See Kymlicka, supra note 3, at 27-30 (discussing the self-government rights afforded to national minorities).
[5] Id. at 27 (noting national minorities’ limited right to self-determination under international law).
[6] Blocher & Gulati, supra note 1, at 211.
[7] 8 U.S.C. § 1402 (2012).
[8] Blocher & Gulati, supra note 1, at 205.
[9] Id. at 234 (quoting Rogers M. Smith, The Bitter Roots of Puerto Rican Citizenship, in Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution 373, 385 (Christina Duffy Burnett & Burke Marshall eds., 2001)).
[10] Id. at 207.
[11] Id. at 236.