A Constitutional Theory of Territoriality: The Case of Puerto Rico

This Article offers an analysis of the relationship between Puerto Rico and the United States that, unlike most of the existing literature, goes beyond discussions of the jurisprudence of U.S. courts and avoids providing merely descriptive or justificatory accounts. Using the tools of constitutional theory, we seek to describe the nature of what we call the “basic structure of territoriality,” the way that structure reproduces itself, and the possibility of its replacement. The basic structure of territoriality, we argue, is comprised by ten fundamental legal rules and five principles. Although those principles are not legally enforceable, they inform in important ways the relationship between Puerto Rico and the United States. Whenever the island or the U.S. Government take any action that contradicts them, a tension underlying the basic structure of territoriality is brought to the surface—the tension between U.S. legal sovereignty over the island and Puerto Rican historical claims to political sovereignty. The Article concludes with a series of thought experiments that allow us to address the question of the identity of Puerto Rico’s constituent subject. We argue that the answer to that question is not to be found in the fundamental legal rules of the relationship but, rather, depend on who is able to effectively (and unilaterally) replace the basic structure of territoriality. As of now, it seems that that entity is the U.S. Congress, whose power under the Territorial Clause of the U.S. Constitution would even allow it to “dispose” of the territory without the consent (and even with the objection) of Puerto Rico. That does not mean, however, that such a situation will (or should) continue indefinitely.