100 years of Puerto Ricans' U.S. citizenship and political status

By Edwin Melendez and Charles R. Venator
The Hill
3 March 2017

In 1917, the Jones Act extended U.S. citizenship to Puerto Ricans. Many law- and policy-makers in the U.S and Puerto Rico erroneously believe —or deceivingly propose —that U.S. citizenship for island-born Puerto Ricans residing in Puerto Rico is contingent upon the resolution of the territorial status of Puerto Rico.

A century after the enactment of the Jones Act, recent events have brought the permanency of Puerto Rican U.S. citizenship to the forefront of political considerations. Last summer, in a span of a few days, Congress enacted one law and the Supreme Court decided two cases that affirmed the Puerto Rico’s century-old unincorporated territorial status.

Earlier this year the Commonwealth government enacted a law for a non-binding plebiscite on the status of Puerto Rico on June 11, 2017. This will be the fifth status plebiscite since the Puerto Rican legislature began conducting these electoral events. The ballot will offer only two options: Statehood and Independence/Free Association, and exclude the traditional “Commonwealth” status option. Because of the exclusion of the “Commonwealth” status option, among other reasons, the 2017 status plebiscite, as was the case in the 2012 referendum, lacks the endorsement of the Partido Popular Democratico, the island’s main opposition political party.

U.S. policy-makers favored granting citizenship to Puerto Ricans not for military recruitment or narrow strategic interests generated by World War I, as is often believed, but rather for supporting U.S. permanence in Puerto Rico, solidification of the governance of the territory, and augmenting a “bond" with Puerto Rico. At the time, granting citizenship to Puerto Ricans was not seen [emphasis added] as a step toward the incorporation of Puerto Rico as a territory or as a step toward statehood.

After a century of Puerto Rican U.S. citizenship, it is clear that the main goal of the Jones Act of augmenting a “bond" with Puerto Rico (and Puerto Ricans, we may add) by granting citizenship has been achieved. Yet, as the ongoing debates about the status of Puerto Rico testify, the question of whether U.S. Puerto Rican citizenship is permanent and irreversible for island residents has been called into question.

The prevalent doctrine on this subject can be labeled as “what Congress gives, Congress takes away” and is stated in a 1989 letter from the Congressional Research Service to Sen. Bennett Johnston (D-La.) during the 1989–1991 plebiscitary debates over the future political status of Puerto Rico. They stated that persons born in Puerto Rico who acquired their U.S. citizenship under the terms of the Jones Act of 1917, which conferred a naturalized citizenship, were not born in the United States for purposes of the Citizenship Clause of the 14th Amendment.

The Congressional Research Service interpretation is wrong. The Nationality Act of 1940 extended the rule of jus soli or birthright citizenship to Puerto Rico. Thus, for citizenship purposes, birth in Puerto Rico became tantamount to birth in the United States. The Nationality Act of 1940 unequivocally established that the Citizenship Clause of the 14th Amendment was the constitutional source for the Act’s birthright or jus soli citizenship provision.

In addition, in Afroyim v. Rusk (1967), the Supreme Court established that once a person was naturalized he or she acquired constitutional protections that limited Congress's ability to enact expatriation or denaturalization legislation.

In short, the revisionist interpretation of constitutional and case law exposed by leading legal and academic scholars supports the interpretation that Congress does not have the legal authority to extricate citizenship from island-born Puerto Ricans. Debunking the “what Congress gives, Congress takes away” dogma changes a core premise of the ongoing political status debate, namely, that statehood is the only way to insure the continuation of Puerto Ricans’ U.S. citizenship.

Since Puerto Ricans have birthright U.S. citizenship, then it follows that U.S. citizenship cannot be taken from island-born Puerto Ricans residing in Puerto Rico or their children by an act of Congress, even if their children are born after a change of political status to other than statehood. In this view, Puerto Rican U.S. citizenship is permanent and irreversible.

It is time that the political discourse shifts from the permanent “bond” between the Puerto Rican people and the United States initiated a century ago with the enactment of the Jones Act. This “bond” is already permanent and irreversible. The focus should be about other costs and benefits of the political status options for both Puerto Rico and the American people, including all Puerto Ricans.

Edwin Melendez is a professor at Hunter College and the director of the Center for Puerto Rican Studies. Charles R. Venator-Santiago is an associate professor with a joint appointment in the Department of Political Science and El Instituto at the University of Connecticut