With Puerto Rico and the Right of Accession, Blocher and Gulati have performed a legal magic trick. They have turned Puerto Rico’s centuries-old history as an imperial plaything into grounds for its possession of an awesome right: to become the fifty-first state, if its residents so choose. That the United States has taken every possible legal opportunity to hold Puerto Rico at a distance from the mainland, the authors urge, is precisely the reason why equity requires that the island be allowed to come closer—indeed, insinuate itself into—the American Union.
Some might find fault in the tricky sequence of legal pirouettes that Blocher and Gulati must turn to pull off their argument. These readers might think: if the right of accession were so synonymous with legality, it would not take so many complex contortions to get there. I am not one of those people. For me, the fancy footwork underscores the way that laws touching upon sovereignty—a kind of sacral, pre-modern legal category[1]—look so unlike what democracies think of as law and so much more like tools of subjugation and tyranny.[2] The way that Blocher and Gulati manage, like legal alchemists, to turn laws designed to ensure that colonies were not too burdensome to their looters into legal gold for a colonized people is nearly miraculous.
But my main interest in this piece lies a bit further back in the logical chain. I want to take time here to critically reflect on the idea of national self-determination. The expulsion/accession conflict the authors pose can instead be framed as a conflict within the right to self-determination. By avoiding this framing, perhaps strategically, the authors undersell the force of the right that Puerto Rico has accrued. The right of accession does not just allow Puerto Rico to fully realize its own right to self-determination; it grants Puerto Rico the right to trump the most powerful nation on earth’s right to self-determination. The right of accession effectively forces the United States to embrace Puerto Rico, when that is precisely what it has not wanted to do for over a century. It is important to see the conflict this way because doing so helps to clarify why the right of accession will be so hard to effectuate in practice. The hold of an ingrained American entitlement to self-determine partially explains why the U.S. Supreme Court continues to prop-up the Insular Cases and why it is impossible to imagine the Court ever permitting the right of accession to be justiciable. Allowing the right of accession to be vindicated in court runs into the concrete wall of the American people’s righteous right to their self-determination.
Reframing the issue as a conflict within the right to self-determination also gets at the dark side of national self-determination. The concept requires a national self; a coherent, intergenerational “people” that merits the right to rule over territory for being a distinct people.[3] Possession of a determined national “self” also entails the right to exclude others from the national territory for not being the right kind of people. (Puerto Ricans, among many others,[4] have long been considered not the right kind of people.) This construction of intergenerational peoples with rights to rule has lately metastasized into white nationalism in the United States, and anti-Muslim and anti-immigrant hysteria all over the rich West. As someone who is critical of a nation’s right to exclude peaceful newcomers (i.e., to regulate immigration),[5] I worry about the way that Blocher and Gulati’s argument might shore up this broader system of national identity-based sovereign power, even as it provides a kind of justice for Puerto Rico. The Right to Accession paints self-determination as an emancipatory legal regime, but its effects on the world run in both directions. Self-determination enslaves some just as it liberates others.
In Puerto Rico’s case, these concerns are somewhat heightened because the long-lived peculiarity of Puerto Rico’s political status has allowed it to fashion a national identity that is rooted in geography and, at the same time, transcend it. For achieving this, Puerto Rican identity is a cutting-edge model for post-national identity formation. Yet that special, resilient identity is threatened by the resolution of Puerto Rico’s political limbo. (I should mention now that I speak from personal experience; my family has lived in Puerto Rico for centuries.) And while the material costs of maintaining that identity have escalated steeply in the last decades—and have become tragic in the wake of Hurricane Maria—the relative lack of momentum on the island for a shift in status one way or the other for so many decades suggests that maintaining this identity, one forged of an odd mix of citizenship and colonialism, has been of paramount concern to the people of Puerto Rico over the last half century. The maintenance of this hybrid identity was valuable enough to stymie the creation of broad-based social movements to normalize Puerto Rico’s status. Thus, the loss of this highly-valued liminal identity in accession or independence, self-determined or not, is worth reckoning with.[6]
Another way to look at the political history of Puerto Rico is to see that Puerto Ricans, for all the horrible colonial heartache and pain, have enjoyed a unique kind of human freedom. A freedom that we might wish for others to enjoy—though without the material and political hardships that have accompanied it in Puerto Rico’s case. The combination of U.S. citizenship for individual Puerto Ricans with quasi-colonial/quasi-independent political status for the island has allowed Puerto Ricans to fashion and live out a kind of rooted bi-national identity that has permitted many Puerto Ricans[7] to live free of the kind of rigid, dangerous fictions of national desert and identity that, for instance, have lately haunted many American whites.
Let me specify: Puerto Ricans are not Puerto Rican-American. They are Puerto Rican and American; they are both things in both Puerto Rico and the continental United States. Many Puerto Ricans can and do shuffle fluently between both worlds and embody them both wherever they are. They can do this and live this bi-national life without going to a consular officer to ask permission. That Puerto Rico is “foreign in a domestic sense”—however incoherent that seems to the American legal audience—has allowed Puerto Ricans to create multiple overlapping yet distinct sites of belonging and community with different geographic locations that can be traversed at a whim (or really, a few hours of plane travel) without any State involvement.[8]
For most immigrants, leaving their country of origin means that they can never quite return; they leave something behind and become something else. Even if they go back, they are not “the same.” Yet with Puerto Ricans, whether one lives on the island or the mainland, one is always, in a sense, living out a coherent Puerto Rican identity. Living in the United States is not living in exile or as an émigré. Puerto Ricans are not expatriates when they live in the U.S., and they do not (unlike, say, Cubans) generally think of themselves that way. To live on the mainland represented, prior to recent troubles, a choice to be Puerto Rican in the United States, even if one does so principally for financial reasons. To live on the island is a choice to be Puerto Rican in Puerto Rico even at a significant cost to earnings. The Puerto Rican “nation” is bi-national, bi-lingual, and different-by-degrees depending on whether you live on the island or on the mainland, or even where you live on the mainland.
Puerto Ricans, then, live inside a national identity that is more pliant and portable than most, but still provides the “good” things we get from national identity: a sense of rootedness in a distinct and rich cultural tradition tied to a place. The combination of citizenship rights in “immigration” with second-class political status on the island helped to hold this identity together. Second-class political status helped Puerto Rico preserve its culture and language by making it less desirable to mainland Americans. Free access to the mainland has helped millions of Puerto Ricans realize the horizons of their talents in the world’s most developed economy, while allowing them to easily maintain robust ties to the island.
The way that Puerto Rican identity wears its improvisational flexibility on its sleeve, offers a lesson to the world. All national identities are equally made-up, and would be equally plastic if we let them be. All modern “nations” are human inventions that are sustained through the human imagination. Anthropologist Benedict Anderson famously showed that nation-states and the “peoples” that populate them are historically contingent constructions—“imagined communities.”[9] Emergent technologies like the newspaper, along with the advent of empire and the perfection of the bureaucratic capacity to administer it, combined to help people imagine themselves as part of distinctive communities that transcended the village and were tied to (far larger) territory and borders. Ultimately, these newly imagined communities—nation-states—cut themselves off from their empires for a host of reasons, but one historically contingent one was that imperial bureaucrats sitting in the metropole (say, Madrid) didn’t want to treat colonial administrators (say, in Lima) as if they had the same status as the metropolitans did.[10] So the put-upon colonial administrators doing the imperial grunt work in the hinterlands turned against empire and towards independence, making up “nations” of former colonies along the way. Together with many other factors, these histories and technologies conspired to create a great wave of “nation”-building that began with the U.S. Revolutionary War and spread to Europe, the Caribbean, Latin America, and Africa. This long tidal wave of national self-determination, Anderson emphasizes, required the fashioning of a coherent and distinctive national self to determine.[11]
Seen in this framework, Puerto Rico presents a case of arrested development. It has a sense of national identity, since there is a meaningful imagined community of Puerto Ricans with a distinctive culture, but that national identity has never been transformed into a nation-state. Puerto Rico is pre-modern and cutting-edge. Its political arrangement is imperial, while its national identity is novel and perhaps a portent of things to come.
Resolving Puerto Rico’s political status would effectively annihilate the powerful and productive novelty of Puerto Rican identity. Rather than continuing to live in multiple identities and domains, the perfection of Puerto Rican political status into a U.S. state, or a nation-state, will mean Puerto Ricans will be Puerto Ricans or Americans (or hyphenated Americans), and not both at once. The erasure of this possibility for living out this kind of identity highlights my longstanding concern with national self-determination: self-determination ought to be an individual, rather than a collective, right. Following political theorist Jacqueline Stevens, a global State system most conducive to human flourishing would dissolve borders for purposes of human exclusion but leave them intact for purposes of all other aspects of governance. This would allow for territorial States without exclusive peoples or nations. In such a world, each individual human would have the power to determine for themselves as to what geographic context or contexts that person prefers to belong. Territorial States would still retain their cultural distinctiveness because, in a world of radical choice of citizenship, States would attract people that share their vision of the good life. Every person could enjoy the privileges of self-fashioning that many Puerto Ricans have accidentally enjoyed. Blocher and Gulati’s vision of emancipation is firmly rooted in the Westphalian system (as it must be to gain any practical traction in the medium term), but Puerto Ricans’ lived lives actually point past that system to new possibilities.
Puerto Ricans have learned to live successfully, fruitfully, and happily without some of the comforting fictions with which most humans live—and in conditions of relative domination and material deprivation. Puerto Ricans know in the range of skin tones and hair textures within nuclear families that race is a fiction. We know through a rootedness in the United States and in Puerto Rico that a nation is something people make together and that it can shift locations as preferences and circumstances change. The way in which Puerto Rican culture is both rich and rooted in soil, made and remade as the hurricanes—literal and political—blow, is an example of creative identity work that should be emulated. I hope this way of being pluralist and multiple can serve as an inspiration for new modes of living and being in an increasingly complex and riven world. For the truth is that we are all Puerto Rican in some sense. If we try, we have the power to live happily in multiple domains and in multiple identities in multiple territories because we are all more than one thing.[12] Puerto Ricans had to learn long ago to be comfortable in ambiguity. That comfort is valuable because ambiguity is reality. The hard lines drawn by State borders, identities, and races are always more permeable and unstable than they appear on maps.
None of this is to say that Puerto Rico should not resolve its status as its residents see fit. I agree wholeheartedly with Blocher and Gulati that Puerto Ricans have the right to become part of the United States if they want to. I only wish to point out that a wonderful, productive, and powerful form of identity that is worth emulating has emerged from Puerto Rico’s “intermediate state of ambiguous existence for an indefinite period.”[13] That form of living may need to give way for powerful material reasons, but we shouldn’t forget the lost art of being Puerto Rican, should it no longer be lived out. The best aspects of it are a model for a new kind of human freedom.
[1] See, e.g., Paul Kahn, Sacred Violence: Torture, Terror, and Sovereignty (2008).
[2] See generally Daniel I. Morales, “Illegal” Migration is Speech, 92 Ind. L.J. 735 (2017).
[3] For criticism of nationalism and the intergenerational quality of nationalism, see Jacqueline Stevens, States Without Nations: Citizenship for Mortals (2009).
[4] U.S. immigration law established its modern form to effect a return of the United States to its old northern European racial stock. See Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America 65-75 (2004). Immigration history is riddled with racism, particularly with the idea that certain races are not assimilable or will undermine the might of the American nation. See, e.g., id.; Jean Pfaelzer Driven Out: The Forgotten War Against Chinese Americans 303-08 (2007).
[5] See, e.g., Morales, supra note 2; Daniel I. Morales, Undocumented Migrants as New (and Peaceful) American Revolutionaries, 12 Duke J. Const. L. & Pub. Pol’y 135 (2016).
[6] See Osamudia R. James, Valuing Identity, 102 Minn. L. Rev. 127, 178 (2017), for a similar argument about how black identity is threatened by efforts to pull African Americans into mainstream locations and settings for their material benefit.
[7] I understand the dangers of generalizing about questions of identity. I am speaking as a Puerto Rican and not for all Puerto Ricans, but my existence within that identity does, I hope, give me some generalizable insights through which to speak about these issues.
[8] I note of course that the ability to perfect this bi-national belonging is tied intimately with social class, racial presentation, and other factors that affect the degree to which encompassing this version of Puerto Rican identity is possible. Still, it’s important to note that in comparison to other modes of transnational life, the privileges of citizenship granted to all Puerto Ricans make it radically simpler for even those of modest means to live out this bi-national identity.
[9] See generally Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (3d ed. 2006).
[10] Id. at 58-65.
[11] See generally id.
[12] Note here I focus on a political group’s duty to create the conditions that would allow individuals to embrace this pluralist identity. In the here and now, pluralism is made difficult to impossible for many because of racism and other forms of prejudice, and as a result the choice to embrace a single identity over other, perhaps hybrid, possibilities, can be rational self-protective and fulfilling.
[13] Downes v. Bidwell, 182 U.S. 244, 372 (1901) (Fuller, C.J., dissenting).