'Being Puerto Rican'

Columbia Law Professor Christina Duffy Ponsa Looks at 'Life in the Shadow of Empire's Law,' as Part of the Clifford Chance Thought Leadership Initiative on Diversity Lecture Series

New York, April 15, 2016—The legal status of Puerto Rico and other territories of the United States was considered last week in a freewheeling lecture by Christina Duffy Ponsa, the George Welwood Murray Professor of Legal History at Columbia Law School.

Dean of Students Michelle Greenberg-Kobrin introduced the March 23 talk, which included Ponsa's personal reflections on growing up in Puerto Rico as well as legal analyses of current U.S. Supreme Court cases concerning the island. Greenberg-Kobrin advised students to view the lecture in the context of the current “national political discourse around citizenship and belonging.”
 Professor Christina Duffy Ponsa became a law professor to pursue a passion for understanding the legal history of relations between the U.S. and Puerto Rico.  
“Professor Ponsa is a law professor because of her own questions about the peculiar relationship between Puerto Rico and the United States,” she said. “This is a personal passion that became her lifelong career.”
Unlike states—which have sovereignty under the Constitution—Puerto Rico is a territory. The island was seized from Spain in 1898, and two decades later Congress granted all Puerto Ricans citizenship. Puerto Ricans have local voting rights and protections under U.S. courts. They also pay some taxes. “But Puerto Ricans do not have voting rights in the federal government,” Ponsa said. “They don’t vote for president; they don’t have senators. They elect a nonvoting delegate to Congress, who goes to Washington and hopes people will pay attention to him.”
‘Formally second-class’
As a child in San Juan, Ponsa had been taught that Puerto Ricans should fight for “equality,” she said. In her family, that meant advocating for statehood. Her parents wanted Puerto Ricans to enjoy parity with most other U.S. citizens, but their political stance put them at odds with islanders who favored independence or the status quo. Those advocating for the status quo argued that Puerto Rico’s 1952 constitution already granted the island sovereignty as a commonwealth, but Ponsa explained that legally the Puerto Rican constitution—like all the powers and privileges of its government—had to be authorized by the U.S. Congress and Congress could revoke it. If Puerto Rico wanted sovereignty, she said, it must become a state.
Ponsa studied history and Latin American Studies, earning degrees from Princeton and Cambridge, before pursuing a J.D. from Yale. After graduating from law school, she opened the New York office of a Puerto Rican nonprofit promoting self-determination for Puerto Rico. She met with elected officials, bureaucrats, and newspaper editorial boards, and she tried to educate citizen groups on the need for legislation to grant self-determination. She also trained groups of fellow Puerto Ricans living on the mainland on how to advocate for Puerto Rican self-determination. One day, Ponsa recalled, she was leading a training session for a group of Puerto Rican veterans who had fought in the Vietnam War. They had volunteered to participate in the advocacy efforts, but their training session was like no other.
“For some reason, they were like junior high school delinquents—they were shooting spitballs, they laughed, they interrupted. It was all very friendly and affectionate, but they thought what I was doing was quaint. What did these guys find so funny?” she asked.
Looking back on it now, years later, it occurred to Ponsa that they had behaved that way because they understood the limits of talking points and arguments. The realization made her reconsider her own work. “I was trying to make an imperial legal regime make sense,” Ponsa said. “Ultimately it shouldn’t make sense, but what I do is help make sense of it.
“Something that wasn’t in the talking points the veterans understood anyway: What it’s like to grow up knowing every day that for some reason you are formally second-class. You are a citizen subject to a government that doesn’t think you ought to have a voice. They understood what it’s like to live in a place where every single election cycle is a battle over secession or integration. The arguments create divisions where you can’t even maintain some relationships, even within family, because you’re arguing about who you are and what you are.”
‘Super-high’ stakes
Before joining the Columbia Law School faculty in 2007, Ponsa worked as a law clerk to Judge José A. Cabranes on the Second Circuit Court of Appeals and to Justice Stephen G. Breyer on the U.S. Supreme Court. She earned her Ph.D. in history in 2010. She is the co-editor of Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Duke University Press, 2001) and the author of articles on the constitutional implications of American territorial expansion.
In December, Ponsa submitted to the U.S. Supreme Court a brief amici curiae, with USC law professor Sam Erman, in Puerto Rico v. Sanchez Valle. The case involved two men who were prosecuted on gun charges in both local and federal courts in Puerto Rico. After pleading guilty to the federal charges, the men contended they couldn’t be prosecuted for the same crimes in local courts under the U.S. Constitution’s double-jeopardy clause. Puerto Rico’s Supreme Court agreed, saying the island’s “authority to prosecute individuals is derived from the United States Congress and not by virtue of its own sovereignty.” The Puerto Rican government appealed, seeking the ability granted to sovereign American states to prosecute the same conduct in local courts. In January’s oral arguments before the U.S. Supreme Court, Puerto Rico asserted that its sovereignty, secured under its 1952 constitution, was under attack.
Ponsa sided with the Obama administration, which held that Puerto Rico has always been a territory without independent sovereignty. In the U.S. government’s brief, Solicitor General Donald Verrilli ’83 warned that a ruling in favor of Puerto Rico could have far-reaching implications, affecting “the federal government's defense of federal legislation and policies related to Puerto Rico across a broad range of substantive areas, including congressional representation, federal benefits, federal income taxes, bankruptcy, and defense."
The Court’s decision, Ponsa noted, will have immense consequences for Puerto Rican self-determination no matter what the Court decides. If the Court rules one way, it could strike a severe blow against statehood. And if it rules the other way, it could strike an equally severe blow against the status quo.  
“The stakes,” Ponsa added, “are super-high.”
The economic crisis
Puerto Rico is in the midst of an economic crisis, with $73 billion in debt and another $40 billion owed in pension benefits to retired public employees.
The day before Ponsa’s lecture, the U.S. Supreme Court heard oral arguments in a case where Puerto Rico is seeking the right to declare bankruptcy under Chapter 9 to restructure its debts. But Congress revised the federal bankruptcy code in 1984, precluding Puerto Rico and the District of Columbia from using Chapter 9.
“If Puerto Rico needs a solution for its problems, it must go to Congress,” Ponsa said. “It should use the political process, but how are people who have no voting rights supposed to use the political process?”