We can argue whether Sonia Sotomayor, President Obama's nominee to replace retiring Justice David Souter, would be the first Hispanic to serve on the Supreme Court. It's beyond dispute that she would be the first Puerto Rican. Sotomayor was born and raised in the Bronx, but her parents migrated to New York from Puerto Rico, and Sotomayor retains a strong ethnic identification with that Caribbean island. "Our gender and national origins may and will make a difference in our judging," Sotomayor said in a 2001 speech whose mild endorsement of identity politics provoked a ridiculous fuss on the right. A more salient criticism would fault Sotomayor's implied suggestion that her "national origins" are any different from those of, say, Potter Stewart. In the speech, Sotomayor called her parents "immigrants," but the island they departed has been an American territory for 111 years. Why it has remained so longer than any other overseas possession (save the odd atoll or guano deposit) is an enduring historic puzzle.
Puerto Rico is often described as the world's oldest colony, having recently entered its sixth century under off-island rule. Spanish settlers seized Puerto Rico from the Taíno Indians in 1508, a decade and a half after Christopher Columbus "discovered" it. It remained a Spanish colony until the United States chased Spain out of the neighborhood in the Spanish-American War. That was 1898, the same year the United States acquired the Hawaiian Islands. Hawaii became a state. Puerto Rico did not. (Another island acquired in 1898 is Guam, which would share Puerto Rico's 111-year record as a U.S. territory but for its seizure by Japan during World War II.)
Almost from the beginning, the United States was at a loss about what to do with Puerto Rico. An 1899 book by Frederick A. Ober titled Puerto Rico and Its Resourcesrhapsodized about the new colony's ability to provide sugar cane and coffee to the continental United States, which in turn could sell Puerto Rico machinery, flour, cotton, and wool. But Latin America was awash in sugar cane and coffee, and the Puerto Rican population was too poor to provide much of a market for manufactured goods. (The island wouldn't industrialize in any significant way until 1935, when President Roosevelt created the Puerto Rico Reconstruction Administration.) Ober made a more compelling case for the island's military value, "with numerous excellent harbours for the assembling and refitting of our fleets." Various military installations would be built there, but after World War II the island became strategically negligible. Today only one Army base remains.
Over the years Puerto Rican secession movements rose and fell. Most sought independence through peaceful means, but some were violent. In 1950 two members of the Puerto Rican Nationalist Party tried to shoot their way into Blair House to assassinate President Harry Truman, who was staying there while the White House underwent renovation. In 1954 members of the same group managed to wound five members of Congress by firing shots from the House Ladies Gallery while shouting, "Viva Puerto Rico libre." Another group called the FALN (Fuerzas Armadas Liberacion Nacional Puertoriquena) conducted a series of bombings in the United States during the 1970s and 1980s, killing five people and injuring 83. Earlier this month, six Puerto Rican independence advocates staged a nonviolent disruption of House proceedings, shouting and waving signs that said "End the colony." In her Princeton undergraduate thesis in 1976, Sotomayor indicated that she favored secession because the alternatives—statehood or continuation of the commonwealth status established in 1952—would lead to "cultural loss" and continued "Americanization of the island." (A few years later she would write in the Yale Law Journal that if Puerto Rico were granted statehood, it ought to retain mineral rights to its surrounding seabed.)
But the Puerto Rican independence movement failed to gain traction. This was due less to U.S. opposition (for the past half-century the U.S. position on this question has mainly been indifference) than to the risk independence posed to Puerto Ricans' ability to migrate to the mainland, as they started doing en masse in the 1940s. Today, although that migration has slowed, the Puerto Rican diaspora in the continental United States exceeds the island's own population.
Debate now focuses on whether to continue commonwealth status or to make Puerto Rico a state. Commonwealth status has the advantage of sharply restricting island dwellers' exposure to federal taxation but the disadvantage of limiting their representation in Congress, excluding them from nonprimary presidential elections, and reducing their eligibility for Medicaid and other federal entitlements. Statehood would bring more taxes, more representation, more government benefits, and some loss of cultural identity (including, in all likelihood, additional pressure to make English the island's primary language). During the past 40 years, Puerto Rico has conducted four plebescites on the island's fate. Commonwealth status won a majority of votes in 1967 and 1991. In 1993, commonwealth status won a 48.6 percent plurality against 46.3 percent for statehood and 4.4 percent for independence. In 1998, a dispute over what "commonwealth status" would mean in the future caused a slim majority (50.3 percent) to choose "none of the above" against 46.5 percent for statehood and 2.5 percent for independence. In all four votes, the status quo prevailed, though in one case by default and in another by a margin of fewer than three points.
Under the Presidents Bush and President Clinton, the feds scrutinized with growing urgency the question of what the hell it was that Puerto Ricans wanted. Justice Department reports are now issued every two years. During the past decade, a major snag has been a growing movement within Puerto Rico for what has come to be called "new commonwealth" status. (Failure to include this option in the 1998 plebescite caused the "none of the above" debacle.) In effect, elevating Puerto Rico to a "new commonwealth" would give the island the benefits of sovereignty without sacrificing the benefits of U.S. governance. It would protect the status quo (possibly adding some elements more favorable to Puerto Rico) by stipulating that no further changes could be made without mutual agreement between Puerto Rico and the federal government. As things stand now, Congress is free to alter Puerto Rico's status unilaterally.
Under both Clinton and Bush fils, the Justice Department argued (somewhat persuasively) that any attempt to restrict future legislative alterations to Puerto Rico's status would be unconstitutional. An alternative mentioned in the Justice Department's 2007 report would follow the "compact of free association" created for Micronesia when the United States granted it independence in 1986. Under the compact, Micronesia continues to receive military protection and financial assistance, and its citizens may freely "enter the United States as non-immigrants" to reside and work here. But this option hasn't attracted much of a following in Puerto Rico because, like the island's present arrangement, it would be susceptible to unilateral termination by Congress. Last year Puerto Rico's governor took its case for a "new commonwealth" to the U.N. General Assembly. In response, the General Assembly called on the United States to "expedite self-determination" for Puerto Rico, but the scolding was hardly disinterested; leading the gleeful charge against Yanqui imperialism was the United States' least-favorite neighbor, Cuba.
Can the "new commonwealth" idea pass constitutional muster? It isn't inconceivable that Justice Sonia Sotomayor might one day rule on this question.