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ike most Puerto Ricans in the diaspora, I experienced the Puerto Rican Summer via social media. Obsessively, I tuned into twitter to watch the protests develop in real time. I too waited for the moment when Governor Ricardo Rosselló would do the inevitable and step down. And while watching and waiting, I was most struck by Puerto Ricans’ embrace and assertion of the rhetoric of democracy. As I witnessed the protests grow by the thousands daily, I was left to ask myself a question that has consistently preoccupied me: what precisely do we mean in Puerto Rico when we talk about democracy? What does democracy mean in an island that has only ever known colonial rule? And to a people that have never exercised a true democracy?
Among the many protest signs visible on the streets of Puerto Rico in July 2019, the ones that most struck me read “Nos quitaron tanto, que nos quitaron hasta el miedo.” (“They have taken so much from us, they have even taken our fear.”). This phrase has a long history in Latin America and has oft been invoked in protests in the region, but in the context of the events of Puerto Rico over the past several years, the phrase felt particularly relevant. When islanders invoked what had been taken from them, they were invoking the 4,645 lives lost during Hurricane María and its aftermath, as well as the US and island governments’ denial of those losses, which are still felt daily and acutely. They were invoking the thousands of people lost through migration in the years leading up to María and the two years since, as well as the lacunae their departures have left. They were invoking also the hundreds of schools that have been closed in an effort to privatize the island’s public sector; as well as, the loss of those schools as community hubs, as spaces to gather and collectively engage. They were invoking the thousands of public sector jobs that have been lost over the past decade and the impoverishment that the loss of those jobs has brought. They were also invoking the billions of dollars in debt that the people of Puerto Rico had little say in acquiring and have been painfully paying through intense austerity measures. Finally, they were invoking the deep sense of loss and neglect that islanders experience when encountering the numerous daily visual reminders of María’s devastation –blue tarps that still remain in place of physical roofs, dilapidated and destroyed buildings, and torn up roads that have yet to be repaired.
It is no wonder then, when we consider the losses upon losses that Puerto Ricans have experienced over the past decade, that islanders took to the streets en masse during the summer of 2019. The revelation of the vile text messages between the Governor and his gang of yes-men were but the proverbial straw that broke the camel’s back. The waves of protests that followed, some in quirky and creative ways, were fueled by the rage of a people that had lived through unspeakable trauma. Then-Governor Ricardo Rosselló’s callous tone in the texts merely illustrated what islanders already knew in their bodies and in their hearts: their government did not care about them.
By some estimates over a million people took to the streets of Puerto Rico to express their outrage and exhaustion with the corruption and disregard of, not only the island government, but the federal government as well. The protests mobilized wide sectors of the island’s population and brought many out to the streets who had never attended a protest or considered themselves politically active. Notably, while the images coming out of the island focused on the events in the capital of San Juan, the clamor of “Ricky renuncia!” (“Ricky resign!”) could be heard across Puerto Rico’s other cities and towns, as well as in the US mainland.
For many, these protests invoked the memory of the protests against the US navy’s activities in Puerto Rico’s outlying, island municipality of Vieques, which began in 1999 after a civilian lost his life during a routine bombing exercise. The violence of the US navy’s long-standing experimental campaigns in Vieques so outraged Puerto Ricans that thousands took to the streets to call for an end to the Navy’s use of Vieques as a military testing ground. That moment, like 2019, galvanized not only island-based Puerto Ricans but their counterparts in the diaspora as well. In both of these historic moments Puerto Ricans and spectators hailed the exercise of democracy in Puerto Rico – the masses of people taking to the streets to collectively speak with one voice and demand the halt of the bombings and the ousting of the US navy in the late 1990’s and early 2000’s and the resignation of Rosselló in 2019.
Democracy’s Tortured History in Puerto Rico
The word democracy comes from the Greek demos, the people, and kratia, power. In its most fundamental of meanings democracy is the power of the people. In a very real way, protests, and especially protests such as those that took place in Puerto Rico in the summer of 2019, where the people speak en masse and with a unified voice is truly the only exercise in democracy, in people power, that we have available. So, it would seem that in Puerto Rico, which has only ever existed as a colony, it is only in these moments that we can speak of true democracy.
Nevertheless, the notion of democracy has historically animated much political fervor in Puerto Rico and the island has a long and convoluted relationship with the concept. Puerto Rico’s current political status, Estado Libre Asociado (ELA or Commonwealth of Puerto Rico) was created in 1952 in order to reconfigure the island’s traditional and extractive colonial relationship with the United States. At the time of its creation the new status appeared to offer islanders local autonomy or local sovereignty and effectively an island-level democracy though still within the structures of federal power. Islanders were able to elect their own local government, create their own local laws and pursue a local democracy. However, over the sixty years since the creation of the ELA, the federal government has oft claimed jurisdiction over arguably local functions and slowly chipped away at Puerto Rico’s local democracy.
June 2016: The Deathof the Estado Libre Asociado
In 2016, Congress and the US Supreme Court took a sledgehammer to what remained of Puerto Rico’s local democracy and effectively reaffirmed the island’s previous, colonial subordination. On June 9, the Supreme Court decided the case of Puerto Rico v. Sanchez Valle, which wasa dispute in criminal law about double jeopardy.[i]Sanchez Valle was arrested for illegally selling a gun to an undercover police officer and was charged with violating the Puerto Rico Arms Trafficking Act. While awaiting trial the federal government brought charges for the same violations under federal gun trafficking statutes. Sanchez Valle pled guilty to the federal charges and then moved to have the island’s charges dismissed under the theory of double jeopardy. The government of Puerto Rico appealed arguing that while usually the Double Jeopardy clause of the 5th Amendment prohibits more than one prosecution for the same offence, the Dual Sovereign exception, which allows for a single action to result in two prosecutions if the action violates the laws of two separate sovereigns, applied in the case. The Supreme Court in Sanchez Valle was thus asked to determine if Puerto Rico was a separate sovereign for purposes of the DualSovereign exception of the 5th Amendment.
Duringthe oral arguments, the justices were demonstrably flummoxed by what to do with Puerto Rico. They were clearly uncomfortable with the island’s argument that the creation of the Commonwealth and the island’s adoption of a Constitution had endowed it with some sort of sovereignty. Likewise, they did not want to explicitly reaffirm the island’s lack of autonomy and its colonial status. A demonstrably frustrated Justice Steven Breyer asked Puerto Rico’s attorney:
Well, what is it? That is, look. If we simply write an opinion and it says, Puerto Rico is sovereign, that has enormous implications…The insular cases are totally changed in their applications…The political implications, I'll just stay away from. On the other hand, if we write an opinion that says it's just a territory, that has tremendous implications…How did we tell the UN it wasn't a colony? Why are we not reporting on this colony every year? So either way, between those two, the implications in law and in politics and everything else are overwhelming.[ii]
In this statement, Breyer encapsulates the difficulty the Court faced in Sanchez Valle, a seemingly straightforward case about criminal prosecution. The Court did not want to overturn its 1901 decision of Downes v. Bidwell, the most important of the infamous Insular Cases.[iii] That case created the category of unincorporated territory and established Congress’ plenary power over the island. It also stated that Puerto Rico would remain unincorporated and thus outside of the US body politic and its laws, until such time as Congress saw fit to change that status. Of course, the lawyers for Puerto Rico argued that this is exactly what had taken place in 1952 when Congress created the ELA and allowed Puerto Rico to adopt its own Constitution.
Ultimately, the court concluded that in this case, “sovereignty … [did] not bear itsordinary meaning.”[iv] Instead the Court wrote, “the inquiry does not turn, as the term ‘sovereignty’ sometimes suggests, on the degree to which the second entity is autonomous from the first or sets its own political course. Rather, the issue is only whether the prosecutorial powers of the two jurisdictions have independent origins—or, said conversely, whether those powers derive from the same ‘ultimate source.’”[v]Though the Court recognized that Puerto Rico today has a “distinctive, indeed exceptional, status as a self-governing commonwealth,” nevertheless it is not sovereign for this purpose because it lacks the inherent sovereignty that both states and Indian nations possess.[vi] Instead, the island’s power to prosecute criminals ultimately stems from Congress and the powers granted to it by Congress.
In short, because Congress gave the island the ability to enact its own constitution, the powers conferred by that document were a delegation of Congress’ plenary power. Though the justices sought to provide a very narrow and limited opinion that would neither open the door for potential claims of sovereignty nor explicitly reaffirm the pre-ELA, colonial nature of the island, the effect of this finding is to definitively dispel the notion that Puerto Rico received a special sort of sovereignty with the creation of the ELA, or indeed any sovereignty at all. In fact, if the island’s power to perform a most basic governmental function - the prosecution of crimes - derives from Congress, then it stands to reason that in fact there is no local facet over which Congress does not also have power, thus leaving Puerto Rico’s Constitution and its purported local autonomy wholly without meaning.
A few days later in Puerto Rico v. Franklin California Tax-Free Trust, et al., the Court went further in affirming the illusory nature of the island’s local autonomy.[vii]This case stemmed from the island’s passage of the Puerto Rico Recovery Act, a bankruptcy law that would have allowed several of the island’s municipal entities to restructure their debts without the consent of the debt holders. Not surprisingly, the banks that owned Puerto Rico’s debt sued.
The question before the court in Puerto Rico v. Franklin California Tax-Free Trust was whether Puerto Rico could enact its own bankruptcy laws or whether the federal law preempted it from doing so. To answer this question, the justices had to determine whether Puerto Rico is a “state” under the bankruptcy code. Chapter 9 of the Code pre-empts state bankruptcy laws that allow indebted municipalities from restructuring their debt. However, it does allow municipalities to file for federal bankruptcy with the authorization of the State. For example, to use a well-known case, Michigan could not write its own state laws allowing Detroit to file for bankruptcy, but Detroit could file for federal bankruptcy, if Michigan authorized it to do so. In other words, the State defines who is a debtor, and thus who can restructure their debt under federal law.
Chapter 9 of the Federal Bankruptcy Code defines Puerto Rico as a state for purposes of the code, “except for the purposes of defining who may be a debtor under Chapter 9.” When the banks sued the island for passing the Recovery Act, the island argued that since it was not a State for purposes of defining which entities were debtors, then it followed that the island was not considered a State at all under Chapter 9 and could enact its own laws. The Court disagreed and found that Puerto Rico’s municipalities cannot qualify as Chapter 9 debtors, and thus cannot file for federal bankruptcy, because Puerto Rico doesn’t have the power to designate them as debtors. But at the same time Puerto Rico remains a “state” for the other purposes related to Chapter 9.
Here, again, the Court’s reasoning leaves the island in a legal conundrum the end result of which is the further erosion of its purported local autonomy and ability to self-govern, the hallmarks of the Commonwealth. Puerto Rico is not a state for the most beneficial part of Chapter 9 – the provision that allows a state to designate who may seek relief in bankruptcy, but it is a state for the more restrictive part of the legislation – the prohibition on states passing their own debt restructuring laws. As a result, Puerto Rico is, again, left unable to engage a most basic governmental function: the organization of its economic affairs.
This conclusion seemed so nonsensical to Justice Ruth Bader-Ginsburg that while the banks’ lawyer made the argument before the court, she interrupted him and with demonstrable frustration asked, “Why would Congress put Puerto Rico in this never-never land? That is, it can't use federal bankruptcy law, and it can't use a Puerto Rican substitute... Why in the world? What explains Congresswanting to put Puerto Rico in this anomalous position?”[viii]
On June 30, a few weeks after the Court handed down its decisions, Congress passed the Puerto Rico Oversight Management and Economic Stability Act (PROMESA). By far the most reviled part of PROMESA was its creation of a Fiscal Control Board (or la junta as its called on the island) that was put be in charge of overseeing the island’s debts. The members of the board do not have to have any direct connections to or specific background about Puerto Rico. They are not accountable to the people of the island and can only be removed by the President. The junta is in charge of approving budgets and fiscal plans; they can veto debt issuances and determine which projects get funded and which do not. Perhaps the most expansive power that the junta has is the ability to designate a territory or territorial instrumentality as a “covered entity.” A “covered entity” then falls under the purview of the Board and it has authority to make decisions with respect to the finances of that entity. In other words, the board has the power to decide exactly what it has power over. On September 30, 2016, the Board designated the “Commonwealth of Puerto Rico” as a covered entity, thereby taking full control over the island’s fiscal affairs.
Islanders understood immediately that the events of June 2016 spelled the end of the ELA and of their purported local democracy. In response Puerto Ricans took to the streets of the island and cities in the US in protest and have been protesting PROMESA and the junta ever since. What the protests of July 2019 demonstrated was not just Puerto Ricans’ desire to vent deeply rooted frustration and anger with the island’s government and Rosselló specifically, but also anger and exhaustion with the island’s continued colonial status, with PROMESA, and with the junta. The call for “Ricky renuncia,” was most often followed by another chant, “y llevate la junta!” (“Take the junta with you!”) This chant was among those most heard across the various spaces of protest. Islanders were demanding not just the ousting of a corrupt and morally degenerate governor, but also the expulsion of the latest colonial structure to restrict their lives.
Perhaps what the protests of 2019 most clearly demonstrated is that when it comes to democracy, islanders understand well the limits of representative or political democracy – the ineffectiveness of the ballot box to make their desires manifest, the inability of their leaders to move forward an agenda that speaks to the will of the people. Instead, islanders know the power of their bodies en masse, the power of their exhaustion and rage when taken to the streets and, perhaps most importantly, the power they hold in community with each other.
One of the most heartening and surprising consequences of the mass mobilizations of July 2019 has been the growth of the asambleas del pueblo (or peoples’ assemblies) - ad hoc, town hall style, gatherings where communities come together to discuss the issues that are most pressing for them. These spaces of dialogue and of community building began during the protests and often took place in outdoor plazas and central gathering spaces across the island and have continued since. Spaces of small-scale democracy, like the asambleas and grupos de autogestión (mutual aid groups), which were indispensible in the months after the hurricanes, have become commonplace and instrumental in the post-María landscape. In the wake of the events of June 2016 and the tragedies of September 2017, Puerto Ricans have understood too well what colonization in the 21st century looks and feels like. As a result, they are finding creative ways to continue to make their voices heard and enact something like democracy wherever and whenever they can. At the most basic level, in Puerto Rico people are making democracy in its most fundamental form because it does not exist in any other.
[i] Puerto Rico v. SanchezValle, 36 S.Ct. 1863 (2016).
[ii] Oral arguments at 16:21, Puerto Rico v. Sanchez Valle, 36 S.Ct. 1863 (2016) (Jan 13, 2016).
[iii] Downes v. Bidwell, 182 US 244 (1901).
[iv] Sanchez Valle, 36 S.Ct. at1870.
[v] Sanchez Valle, 36 S.Ct. at1869.
[vi] Sanchez Valle, 36 S.Ct. at1874.
[vii] Puerto Rico v. Franklin-California Tax Free Trust, et al. 136 S.Ct. 1938 (2016).
[viii] Oral Argument at 41:1, Puerto Rico v. Franklin-California Tax Free Trust, et al. 136 S.Ct. 1938 (2016) (Mar. 22, 2016).
Other essays from this forum include:
Making Space for Decolonial Futures: An Editors’ Introduction, Joaquín Villanueva and Marisol LeBrón
La Calle Fortaleza in Puerto Rico’s Primavera de Verano, Aurora Santiago-Ortiz and Jorell Meléndez-Badillo
Summer 2019: The Great Racialized Puerto Rican Family Protesting in the Street Fearlessly, Bárbara I. Abadía-Rexach (a version of this article is also provided in Spanish)
Three Poems from the Summer 2019, Ana Portnoy Brimmer
The Public Reckoning: Anti-debt Futures After #RickyRenuncia, Sarah Molinari
Aguadilla, Decoloniality, and the Summer of ‘19, Pedro Lebrón Ortiz
Mónica A. Jiménez is a poet and historian. She is currently assistant professor of African and African Diaspora Studies at the University of Texas at Austin. A Canto Mundo and Ford Foundation Fellow, her writing has appeared or is forthcoming in WSQ:Women Studies Quarterly, Latino Studies and sx salon, among others. You can find her on Twitter @Malexjimenez02.