Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America's Colony

By Del Toro, Valeria M. Pelet | The Yale Law Journal, January 2019 | Go to article overview

Beyond the Critique of Rights: The Puerto Rico Legal Project and Civil Rights Litigation in America's Colony


Del Toro, Valeria M. Pelet, The Yale Law Journal


NOTE CONTENTS        INTRODUCTION                                               794 I.    CRITIQUING THE CRITIQUE OF RIGHTS                          801       A. CLS's Critique of Rights                                801       B. CRT and LatCrit's Response to the Critique of Rights    804 II.   PUERTO RICO'S COLONIAL STATUS UNDER THE U.S. LEGAL SYSTEM  810       A. Puerto Ricans, (Second-Class) U.S. Citizens             810       B. Repression on the Island                                813 III.  THE ADVENT OF CIVIL RIGHTS LITIGATION IN PUERTO RICO       817       A. Keeping Movements Alive                                 817       B. Lawyering for the People                                822       C. A Project of Their Own                                  828 IV.   TURNING TOWARDS RIGHTS TALK                                832       A. Rights Talk as Restitution                              832       B. CLS, Revisited                                          836       CONCLUSION                                                 839 

INTRODUCTION

On May Day 2017, thousands of Puerto Rican workers, students, and other groups demonstrated against draconian austerity measures ordered by the U.S.-appointed fiscal oversight board, a controversial creation of the PRO MESA law. (1) PROMESA, short for Puerto Rico Oversight, Management, and Economic Stability Act, is a federal law designed to address Puerto Rico's ballooning debt crisis. (2) The law established an oversight board with the power to override local government decisions, highlighting the territory's status as a de facto U.S. colony. (3) In March 2017, the oversight board voted unanimously in favor of cuts to the public pension system, (4) considered a $512 million cut in university funding, (5) and endorsed a plan to fire government employees, (6) transferring the weight of the island's public debt of $72 billion onto the people of Puerto Rico. (7) In response, thousands took to the streets, carrying signs with slogans against U.S. colonialism and images of the Puerto Rican flag in black and white, a symbol of resistance amid crisis. (8)

A protest of that size and manifesting such palpable anticolonial sentiment is unheard of in Puerto Rico. The questions of Puerto Rico's political status--whether Puerto Rico should become a state, independent, or something else--and how best to describe Puerto Rico's relationship to the United States have divided the island for almost seventy years. (9) Since the 1950s, (10) two centrist political parties have dominated political discourse on the island: the Partido Popular Democrdtico, (11) which supports Puerto Rico's current relationship with the United States, and the Partido Nuevo Progresista, (12) which advocates for Puerto Rico's statehood. (13) In general, both parties have avoided describing Puerto Rico as a "colony" for tactical, political reasons. (14) Even the legendary organizing against the U.S. Navy's presence in Vieques, (15) a situation with obvious colonial undertones, was careful "not to focus on Puerto Rico's political status in framing the political response to Vieques." (16) The local movement in Vieques did not view itself as "an anti-imperialist mobilization," but rather "framed its struggle as one of social justice and human rights," priding itself on its ability to stay out of the island's partisan struggles. (17) Any articulation of rights, the privileges that come with U.S. citizenship, or even the meaning of the nation's relationship with the United States, is inherently political in Puerto Rico.

The debates surrounding Puerto Rico's political status set the stage for a second, equally contested question: would a rights-based approach be effective at rectifying Puerto Rico's current socioeconomic and political condition? The federal government has long subjected Puerto Ricans to disparate treatment, which suggests that rights assertions may fall on deaf ears. Puerto Ricans, despite having U. …

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