The law's the law, even in a territory.

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What's Fair for Iowa Is Fair for Puerto Rico

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Is the Commonwealth of Puerto Rico sovereign, like the 50 states? Or is it a mere territory of the U.S.? This problem in the metaphysics of colonialism has some relevance to the question of Puerto Rico’s ability to restructure its bonds using bankruptcy law, which will come before the U.S. Supreme Court later this year. But the justices will take up the matter directly Wednesday, in considering whether Puerto Rico and the federal government can separately prosecute someone for the same crime.

The case, Puerto Rico v. Sanchez Valle, arises out of the constitutional doctrine of double jeopardy, which says you can’t be tried twice for the same offense. Historically, the doctrine known in common-law French as “autrefois acquit” applied to convictions by foreign sovereigns. But the Supreme Court has long held that the state and the federal government represent an exception to it, because of the strange relationship between state and federal sovereignty.

QuickTake Puerto Rico's Slide

According to the court, because the federal government and the state governments are different sovereigns, they aren’t charging you with the same offense. One charge is for violating state law, the other for violating federal law.

The idea behind this is supposed to be that the states retained sovereignty when they combined to form the United States of America. This was an innovative, not to say strange, feature of the U.S. Constitution.

Before the Constitution was enacted, English-speaking political theorists thought it was logically impossible to have what they called “imperium in imperio” -- a state within a state. Sovereignty was thought to mean final, absolute political control. If one sovereign contained another, the larger one must be the sovereign -- or else it didn’t really contain the lesser at all. Thus, under the Articles of Confederation, the national government wasn’t really sovereign. It could act only through the states.

James Madison came up with a way around the problem: The national government would govern individuals directly with respect to some matters, and the states would govern with respect to others. In a basic sense, this idea marked the invention of what would come to be called federalism.

It was this invention that Justice Anthony Kennedy had in mind when he once wrote that “the Framers split the atom of sovereignty.” What had once been thought indivisible was now understood to be capable of divisions.

States, then, may prosecute people for the same crimes charged by the federal government. But what about Puerto Rico?

In 1988, the Puerto Rico Supreme Court held that the commonwealth was sovereign like a state for purposes of double jeopardy. It reasoned that the people of Puerto Rico have a constitution of their own, enacted in their name. Thus, the commonwealth’s power to punish crimes “emanates, not only from Congress, but also from the consent of the People and, therefore, from [Puerto Rico] itself.”

That’s an attractive piece of reasoning insofar as it emphasizes the inherent rights of humans to govern themselves, and treats Puerto Ricans the same way it treats other U.S. citizens who live and vote in states.

But in the case now before the Supreme Court, Puerto Rico’s highest court reversed itself and held that the commonwealth isn’t sovereign. The commonwealth’s constitution was enacted pursuant to permission from Congress, which could in theory alter or amend it, the court said. Thus, Puerto Rico’s authority to pass laws derives from Congress -- the same source that passes federal law.

This holding emphasizes that Puerto Rico isn’t exactly like the 50 states. Its residents don’t get to elect voting members to Congress or vote for president. In this sense, Puerto Rico is like an old-fashioned colony -- which in U.S. law would be called a “territory.”

Who’s right? There’s a small chance the Supreme Court will duck the issue. Last week it asked the parties to be ready to discuss whether the case is really ready to be decided, because some criminal charges against the defendants are pending.

But if the court does reach the basic issue, it ought to begin by asking why sovereignty should matter for purposes of double jeopardy. The idea that states retain their sovereignty under the Constitution is based on the notion that local self-government matters. That’s why a state’s criminal law is supposed to be different from a federal one.

The same rationale applies to Puerto Rico, or at least it should. In the modern era, we should recognize the inherent authority of Puerto Ricans to self-govern. That includes passing laws. Practically, Puerto Rico law is like Iowa or New Hampshire law: passed by an elected legislature to reflect local values.

The alternative is a type of formalism of that stresses Puerto Rico’s quasi-colonial status. That status is real, and it’s really a problem. But it isn’t a problem with regard to the commonwealth’s criminal law, which is at issue here.

When the court later takes up Puerto Rico’s ability to use bankruptcy law to avoid defaulting on its bonds, the issue will be whether the commonwealth should have less power than a state. The right policy answer is that it shouldn’t be treated differently. Here, too, sameness is fairer than difference. The court should treat Puerto Rico like a state for double jeopardy -- even though it isn’t one.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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