Lawson & Sloane: The Constitutionality of Decolonization: Puerto Rico's Domestic and International Legal Status

Gary Lawson (Boston Univ. - Law) & Robert D. Sloane (Boston Univ. - Law) have posted The Constitutionality of Decolonization: Puerto Rico's Domestic and International Legal Status (Boston College Law Review, forthcoming). Here's the abstract:

International law and constitutional law collide in the present relationship between the United States and Puerto Rico. As a matter of international law, it is unclear that the current relationship between the United States and Puerto Rico in fact conforms to customary international law on decolonization, human rights, and self-determination, as well as explicit U.S. treaty obligations; and as a matter of domestic law, it is unclear that the Constitution permits an arrangement between Puerto Rico and the United States - short of separation (independence) or integration (statehood) - that could conform to these norms of contemporary international law. In particular, where, as in Puerto Rico, decolonization takes the form of associated statehood, the Appointments Clause and the Constitution's voting provisions may well be in tension with contemporary international law.

In this article, a collaborative effort by scholars focused on constitutional and international law, respectively, we seek to clarify formerly unacknowledged tensions in the relationship between Puerto Rico and the United States and to explore potential means by which they might be resolved. One of us adopts a formalist, plain-meaning originalist view of the Constitution, which throws into sharp relief the arguable constitutional defects in the present U.S.-Puerto Rican relationship established more than fifty years ago. The other does not embrace this kind of rigid originalism and therefore would not be as quick to exclude a potential resolution of the tensions between international and constitutional law by means of constitutional interpretation. The authors agree, however, that those tensions can no longer be neglected in a State committed to the rule of law. The authors also agree (and aspire to be living proof) that several of the most troubling of the arguable obstacles to constitutional self-governance for Puerto Rico as a State freely associated with the United States can be resolved - with a modest amount of political will and creativity - in a manner that, in effect, elides the oft-intractable debates that afflict modern constitutional theory: substantive, even if not formal, international legal compliance can be established in a fashion that avoids perennially debated issues of constitutional law and theory. Above all, we seek to facilitate a long-overdue discussion about how, concretely, to reconcile U.S. international obligations toward Puerto Rico with the Constitution.