Not so sovereign.

Photographer: ERIKA P. RODRIGUEZ/Bloomberg

A Constitutional Diss 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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Who’s the sovereign in Puerto Rico? That question sounds philosophical, or maybe political, not legal. But the Supreme Court has decided it nonetheless.

In a 6-to-2 decision, the court held that the Commonwealth of Puerto Rico and the federal government can’t both prosecute the same offense without violating the Constitutional ban against double jeopardy. That's because Puerto Rico, despite having its own constitution, isn’t a separate sovereign.

The result leaves Puerto Rico less sovereign than the 50 states – and provides yet another reason for the commonwealth either to declare independence or demand statehood.

QuickTake Puerto Rico's Slide

The opinion for the court, by Justice Elena Kagan, offered a theory of how sovereignty could be determined for purposes of double jeopardy. The court, Kagan wrote, should inquire back to the “ultimate” source of sovereignty, and use that to make its determination.

In the case of Puerto Rico, Kagan looked to the island's 1950 Constitution – and found that it derived its authority from Congress, not from the people of Puerto Rico. Indeed, Congress did pass a law authorizing the commonwealth to write the constitution. The same law also required final congressional approval of the document.

From this analysis, Kagan concluded that Congress, not the Puerto Rican people, was the source of sovereignty in Puerto Rico. Because the same sovereign can’t prosecute somebody twice without violating the double jeopardy ban in the Fifth Amendment, Puerto Rico and the federal government can’t both prosecute the same offense.

The result left the commonwealth worse off than the 50 states. Kagan explained that they are treated as separate sovereigns for double jeopardy purposes because states existed before Congress.

That’s true of just 13 of the states, of course. The others were all admitted with Congress’s assent. And in many cases, Congress set conditions that the state constitutions would have to meet for the states to be admitted.

But Kagan reasoned that all 50 states have the same sovereign status because, under the Constitution, the last 37 had to be admitted on “equal footing” with the original 13.

Justice Stephen Breyer dissented, joined by Justice Sonia Sotomayor. Breyer pointed out that “ultimate” sovereignty is a misnomer. The court was, rather, choosing the salient moment of sovereignty creation.

To Breyer, that moment was 1950 for Puerto Rico -- when the Puerto Rican people created their own constitution. True, Congress was involved. But, Breyer argued, sovereignty creation can involve multiple actors. One country can grant another independence, at which point the people of the newly created state can exercise sovereignty.

Breyer’s analysis is astute and pragmatic. Popular sovereignty is a political fiction, as the historian Edmund Morgan showed. Why shouldn’t the myth be created jointly?

What’s more, sovereignty is fluid in American political history. As Justice Anthony Kennedy once put it, the framers of the Constitution “split the atom of sovereignty.” Before the 1787 constitutional convention, it was thought that there could never be an “imperium in imperio,” one sovereign containing another -- because by definition, sovereignty mist be absolute. The Constitution created the sovereign federal government overlapping with sovereign states. In this sense, pragmatic conceptions of sovereignty are in our constitutional DNA.

Kagan’s opinion was more formalistic. Sovereignty, in her view, can only have one ultimate source. 

But Kagan’s opinion also has the merit of recognizing that Puerto Rico has a unique constitutional status. It isn’t a state and it isn’t a country. It’s a de facto colony – in a country that in theory eschews the very possibility of holding colonies in perpetuity.

That needs to change – and Kagan’s opinion can help motivate that change. The opinion refuses to take the easy step of calling the Puerto Rican people sovereign when they are denied full participation in Congress or the presidential election and when their island has its special status.

Some Puerto Ricans want to keep that special status. But doing so comes with costs, both practical and symbolic.

The practical aspects will be addressed by the Supreme Court this term in the context of Puerto Rico’s capacity to allow its municipalities and utilities to declare bankruptcy. The symbolic aspects came in this case. If Puerto Rico wants to be sovereign, its people will need to insist on it.

  1. "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

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To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Jonathan Landman at jlandman4@bloomberg.net