The Baldy Center Podcast

The Baldy Center for Law and Social Policy at the University at Buffalo
Spring 2023, Episode #33
Podcast recording date: 5/2/23
Host-producer: Simon Honig
Guest Speaker: Jorge Farinacci-Fernós
Contact information: BaldyCenter@buffalo.edu

Transcription begins

Simon:

Welcome to the Baldy Center for Law and Social Policy Podcast. I'm your host, Simon Honig. Today I am joined by Jorge Farinacci-Fernós. Professor Farinacci-Fernós is a Visiting Professor of Law at the University at Buffalo School of Law. He is a Tenure Track Associate Professor of Law at the Inter-American University of Puerto Rico Law School, where he teaches constitutional law, legal history, administrative law, and legal writing. He has published articles in the Hastings International and Comparative Law Review, Tulsa Law Review, Kansas Journal of Law and Public Policy, Barry Law Review, and Vienna Journal of International Constitutional Law, among others, mostly about constitutional law issues. Why don't we start off with just a bit of a background on your education, your work and Puerto Rico, and what you're doing here in the U.S.

Jorge:

So, I started as a history major actually, and thought that was going to be my original pathway. But it turns out it's a great pivot to law from history to law. So after I did my Bachelor's degree and Master's in history, I got my Juris Doctor from the University of Puerto Rico School of Law. And because I knew that I was always wanted to pursue an academic career and eventually join academia. So after I did my two years as a law clerk at the Supreme Court in Puerto Rico, I did my LLM at Harvard Law School and then the SJD, which is the doctorate in law at Georgetown University Law Center. And for the past five, six years, I've been working first as an Assistant, now as an Associate Professor of Law at the Inter-American University of Puerto Rico School of Law. But then last year I had the opportunity to come to UB Law as a Visiting Professor for two semesters. And so of course I said, you know, it's interesting to have that opportunity. And now I'm almost at the end of those two semesters, and it's been a very interesting experience so far.

Simon:

Well, we're here today to talk about the book you recently wrote, entitled Puerto Rico's Constitutional Paradox: Colonial Subordination, Democratic Tension and Promise of Progressive Transformation. What's the meaning of that title for you, and what would you like it to mean to your readers?

Jorge:

Well, actually we could even start with the previous question, right? You asked about my education in Puerto Rico and my work in the United States, and that presupposes sort of like a difference, and for many reasons it is. For many reasons it is. Puerto Rico is one thing. United States is another. And we normally, in our daily communications and conversations in Puerto Rico, we do distinguish between the two. At the same time, Puerto Rico is a US jurisdiction, so technically it doesn't make that much of a difference, right? Reminds me, when I was doing my graduate studies in the US, every time I had a question they would first send me to the International Students Office, because hearing Puerto Rico, hearing a Hispanic accent, their first instinct, I understand in part because of this sort of on the one hand, lack of sufficient information about what Puerto Rico is, but even if you do, you still don't exactly get the picture because no one knows the exact picture anyways. And so every question you ask me, every time we fill up a form, we have to make decisions, right? Every time we go, like to the little columns in an online format, it's like country or state. And sometimes Puerto Rico appears in both, and we have to choose, it's under country or US, and then PR as a state. Sometimes we appear in neither, and we have to call the call center or something because we are neither listed as a country nor listed as a US jurisdiction. So that's part of the Puerto Rican experience in general, particularly in law, and even more particularly in constitutional law, which deals not only with the way in which Puerto Rican society has been organized and is developing, but also its relationship with the United States. So in that sense, Puerto Rico's constitutional experiment and experience, not only dating from the current constitution from 1952, but throughout our history as a people, as a community, has been brought by contradictions and paradoxes, right? How can you have a constitution that says “We the people of Puerto Rico,” but it's not really with “We people of Puerto Rico” because it's a subordinate unit to a larger political entity in which we have no political participation. At the same time, the Puerto Rican Constitutional Project was one that was characterized by great democratic mechanisms and atmosphere. Yet the structure it produced has glaring democratic deficiencies. And at the same time, Puerto Rico has had this up and down history in terms of attempting to bring about social transformation in a progressive or egalitarian instinct, only to see those attempts frustrated by structural, historical, and sometimes even external considerations. So that's like a perfect recipe for a constitutional project that resists simple analysis. It's quite understandable if you look at it, but you have to always have in mind this contradictory nature that for, like the laws of physics, for every one thing you have a counter that is in an internal, inherent battle that has not been able to dominate the other. And it is sort of this permanent structural contradiction that hopefully won't last forever, but it has been a feature of the constitutional experience in Puerto Rico for a long time.

Simon:

Which avenues do you use to kind of explain the contradicting nature, or are there different areas like multiple facets of contradiction within the Puerto Rican constitutional experience?

Jorge:

At each stage, the dynamic of the contradictions is different, right? So let's see how we can piece this together. So the book centers on the Puerto Rico Constitution of 1952, but it's not limited to the Puerto Rico Constitution 1952. That's again, one its core, its main focus for sure. But, first, in order to understand it, and two, because that document in adopted in 1952 is neither the beginning nor the end of the story. We have to branch out and we have to go back from 1952, and we have to go forward from 1952. So it will be both a mistake to start the book in 1952 or to end it in 1952, because that really does not capture one, the entirety of Puerto Rico's constitutional experience. But two, to understand the process that generated the Constitution of ‘52 and how that constitution has been put into effect during the last 70 years, you have to take into account those factors. So the book does, you know, take a historical approach, a conceptual approach, a legal approach to the process of Puerto Rico's constitutional experience since probably the days of the Spanish, and even before, but focused on this event in 1952 that, on the one hand, was the seminal moment because it's the only time in 500 years where the Puerto Rican people have been able to write a constitution by its own for its own. But on the other hand, didn't change much. It didn't change much. You get the appearance of change and “We the people” sounds very nice, and it's better than not “We the people,” but at the same time didn't fulfill what it should fulfill when a political community exercises its self-determination. So we go through those stages in terms of what happened before the antecedent moments that part, the constitutional process in the 1950s, the deliberations of the convention that wrote it, the content of the Constitution itself, which if you read it stands out. It really does stand out.  It was a trail blazer when it was adopted. It's, I think in many respects, still a trail blazer. Actually, many US state constitutions copied from Puerto Rico's text after ‘52. So you obviously focus also on that, which includes not only the known quantities and familiar subjects like the structure of government, basic political rights, the amendment procedures. Puerto Rico’s constitution goes a little further than that. It includes socioeconomic policy, environmental policy, labor rights, right to education, right to privacy, the death penalty, a lot of substantive content built into the Constitution. Not to freeze it in time necessarily or exclusively, but to serve as a blueprint for the type of society that we wanted to build afterwards. And after we analyzed the process in the 1950s, we see what's happened in the last 70 years, the good and the bad, which means, you know, the problem of constitutional under enforcement, right? The problem of the continued colonial relationship with the United States, and the effects that has had in Puerto Rican society and Puerto Rican law, of course, and even more recent experiences such as a string of cases by the US Supreme Court, which after a long period of silence suddenly put Puerto Rico back on the radar, basically saying we were as we were in 1912. That really nothing has changed in more than a century. And in each one of those stages, we focus on those three elements: the colonial problem, the democratic characteristics, and the social progressive content of the Puerto Rican experience, and the contradictions within that. So yes, it operates at several layers, right? How democracy, colonialism, and progressivism sort of interact, but within each three, there are contradictions at play, because on the one hand, there is this rejection of the colonial model. We don't want it, yet we have it. We aspire to democratic self-government, but the structures we have adopted don't really allow for that. We aspire to greater social justice. We aspire to our greater communitarian project, yet we have not been able to adequately use the Constitution as a tool, or at least a principal tool, as it was originally designed. So that sort of captures how to approach the Puerto Rican constitutional project instead of on a one dimensional cold positivistic, you know, this is it, this means this, this means that. No, enriched by different layers of experiences, including colonialism, including democratic struggle, including social transformation that paints a, on the one hand clear picture because it's a better picture, a more complete picture. But at the same time, it explains, or at least makes it clear, that things are not as simple as they seem, and that there is a structure here. There are historical problems here. That there is a web here of problems that require further conversation.

Simon:

So when we spoke the first time you mentioned that you use a couple different lenses to kind of shine light on different areas of that experience and the history of the constitutional project in Puerto Rico. How do you use the differences in those lenses to paint those different pictures that you're talking about?

Jorge:

And let's see if we can use an example of that, that also across this time. So in 1950/51 the US Congress authorized Puerto Rico to write a constitution. So red flag number one, we were authorized to exercise our self-determination. It's like the British had authorized the United States to write a constitution in Philadelphia. At the same time, there was a referendum where Puerto Rico accepted Congress' authorization. So we could have said no, but if we had said no, that meant we were at no constitution, and therefore were subject only to the statutes adopted by Congress. So we took the offer, but it was a sort of a one-sided offer. But, you know, that's where it starts. And I think there was this historical awareness that this is an important moment in our social life, our community life.  After 400 years of Spanish domination, we've never had anything even closely resembling the ability to write our own constitution, establish our own legal system. So we took it to heart. This is 1950/51 so World War II has ended, the international human rights discourse is growing the universal education of human rights, the notion of human dignity, the notion of self-determination. And so therefore, there was this self-realization of what was going on. That meant that everybody was involved: communities, labor unions, civic groups, churches, parties, newspapers. It became a collective national project, the right on the Constitution. But then other contradictions start to emerge. There's a strong militant pro-independence movement that sees this process as a masking of the colonial problem. That by engaging in this collective project, we could maybe legitimize what's a structural problem of how come we get authorized and set conditions, and also told that once we write the Constitution and we the people approve in a referendum, it goes back to Congress that reserves the right to unilaterally amend it. So again, this contradiction, how can you have this apparently super democratic process at a moment of great political tension, even repression against the independence movement that was questioning the process itself, but also a sort of conclusion that well, we're better off, at least with this than being the subjects of direct congressional unilateral control. So then we write this constitution, and it takes us a takes us a year and a half, because it was carefully thought out. There were public hearings. Citizens were encouraged to send in proposals, and they did, and they were debated, and many of them actually approved. So, again, very democratic, very participatory. But then, so it goes to, like I said, to the people in referendum and Congress sees the second and says there's three things we don't like, you have to take them out. They're too progressive. This is 1952. So the Cold War, you know, is, is heating up. So there's a provision of the Puerto Rican constitution that talks about the right to have employment and healthcare and housing, and oh no, 1952, that sounded to quote the US Congress “too socialistic.” So it was actually taken out. It was taken out, what was supposed to be the crown jewel of our constitutional project was taken out unilaterally by the US Congress. So anyways, but the problem is that even though, again, it was a proto democratic atmosphere, where there are contradictions, like I said, in regard to the independence movement. Still, the structure that came out of the 1952 Constitution has great democratic deficiencies. So you would've thought that a progressive political leadership would've taken a page out of maybe the California experience of having like citizen initiatives and referenda and recall and proportional representation. And look, nothing like that. The structure that came out of it was quite very much designed for a single party to win it all and to have very little participation from the public except voting every four years for the people who make all the decisions for us. So that's a contradiction. How can a democratic process produce such an undemocratic system? Then fast forward 70 years later in 2019, there's a governor in Puerto Rico that's mired in a scandal that the Puerto Rican people are up in arms, but there's no way to get rid of him, because there's no recall. And impeachment is only something that can be done by legislature, but the legislatures are beholden to the governor because of the party system that we set up. So people took the streets, 600,000, 800,000, basically a quarter of Puerto Rican population in the streets in a single day, not saying impeach the governor, but governor, you need to resign. Because we had not included any structures in our constitution, any mechanisms, any tool to address a democratic problem when it arose. And the governor resigned because of the popular pressure, but then the people started questioning, why don't we have, what isn't our constitution helping us here? So the Constitution was a problem for that. At the same time, during those protests, there was a lot of police repression, and people were saying, whoa, hey, a minute, the Puerto Rican Constitution guarantees the right to protest, et cetera. So the Constitution was an ally for the protest at the same time. So again, you go back and forth in terms of the role of the Constitution in Puerto Rican life. And the contradictory nature of many of its components materialize this constantly. And we have to constantly, you know, analyze the good with the bad because we don't want to throw away the baby with the bath water, but we don't want the bath water either, right? So that's sort of this permanent collective dilemma we have in terms of what do we do with our constitution? We don't want to get rid of it because there's a risk that we will get a worse one, but we are not completely satisfied with it because it has these built-in features that fortify or consolidate both colonialism and democratic shortcomings.

Simon:

So you've mentioned a couple times the relationship that the US government has with the Puerto Rican government in, you know, allowing the Puerto Rican government to create its own constitution and making changes that it saw fit. I'm curious, in your view, today or recently in general how, how do you see the US Constitution and US Supreme Court decisions affecting the law in Puerto Rico and the Puerto Rican constitution?

Jorge:

Well, again, we have to always address two sides of this. So every answer I will give you has to take into account two things, at least, because of the paradoxical nature of what's going on. So on the one hand, right, on the one hand, we are, yes, we are still subject to things that states wouldn't be subject to. So a few years ago, because of the Puerto Rican financial crisis in the government US Congress passed the statute that allowed for the appointment of an oversight board that has the power to veto Puerto Rican legislation. They're not elected by us. So, you know, there's this appointed board, in Spanish “ajunta,” which has very strong connotations, of people we don't know, and we didn't elect telling us what statutes we can have, what laws we can have, and what laws we cannot have. And that was completely validated by the US Supreme Court decisions saying, yeah, because since Puerto Rico's not a state of the US, as stated infinitely in the insular cases more than a hundred years ago, we belong to, but not a part of the United States. So that's it. We belong, right? It's a thing, right? It's property and we just happen to live in it, but not a part of the United States. So therefore, we are subject to that sort of very undemocratic and colonial form of government. On the other hand, in terms of the development of law again, it's a mixed verdict. On the one hand, a few years ago there was a Puerto Rican Supreme Court case by four that decided that same sex couples didn't have a right to adopt under the Puerto Rican constitution, even though ours has strong anti-discrimination language that's not present in the US Constitution. Two years later, Obergefell, the US Supreme Court decides that marriage is a right for both same sex and opposite sex couples. So that applies in Puerto Rican, right? Because the Supreme Court's decisions are binding on us. So that's one example of how colonialism actually produced a progressive result, right? Because, if left to Puerto Rican institutions, same sex couples would not have that right.  But then the Supreme Court gives that right. But there's other examples as well. We have the Dobbs decision that overrules Roe versus Wade. So does that mean that abortion and reproductive rights are illegal in Puerto Rico? No, it's not because there's a Puerto Rican Supreme Court case that says, from a long time ago, that unlike the US Constitution, we actually have an explicit privacy provision that therefore does not allow the government to directly regulate a woman's body. So that's an example of how the Puerto Rican Constitution actually protected the Puerto Rican people from the shortcomings of the US Constitution. So again, it's a mixed bag. And so we are dealing with that because that's why Puerto Rico, in some ways, it's very similar to a state. In some ways it also has problems of being a colonial possession, but it's still also not a Latin American nation. So it has all these characteristics at the same time that require diving into each component a little deeper.

Simon:

Does that cause a lot of conflict within the Puerto Rican government? Like as you said, a US decision could be more progressive than the Puerto Rican constitution in some cases and not in others. Who, or who makes that decision, or who's part of that decision to say this decision from the US Supreme Court is more progressive, so we want to adopt that view?

Jorge:

Well, it's not up to us. We don't get to select which ones. So when the United States Supreme Court decided Citizens United, that applies to us. So there's the possibility of, you know, limitless expenditures in campaigns, which has created a problem of corruption among Puerto Rican elected officials. But I'll give you another example. When the US first came at, during the Spanish American War in 1898, Puerto Rico was occupied by US military forces as part of that war. It was subject to military decrees, and we were governed by admirals and generals. And the first decree that was issued had, among other things, two very curious provisions. One, legalizing divorce and legalizing labor unions. Two things, we were illegal under Spain, but this was an admiral and a general signing a decree without our consent telling us we had this very important two rights, right to divorce and to form labor unions.  So also to see that contradiction. But no, I mean, obviously US Supreme Court decisions are entirely binding in Puerto Rico as they would with any other states. But what we know from the US federal structure also is that just because you don't have a right at the federal level doesn't mean you don't have a right in the state level. And actually, that's why I mentioned the example of reproductive rights that after the Dobbs decisions, many people turned to their state constitutions. You know, if you remember a few weeks after the adopts decision, I think, or months, there was a referendum in Kansas to amend the Kansas Constitution to explicitly protect reproductive rights. And that was passed by like a 60:40 margin. So, and we have a similar provision. So that's why even though Dobbs overruled a federal right, we had already a state constitutional right. Same with the death penalty, we've never had to debate amongst ourselves with the death penalty whether it is cruel and unusual punishment because it's been outlawed by statutes since the thirties and constitutionalized the death penalty ban in 1952. So there's just, it's out of the conversation. There can be no death penalty on the Puerto Rican law. Obviously, like any other US state, if you commit a federal crime and the US attorney decides to prosecute you, he can ask for the death penalty under the federal system. But curiously enough, using this interesting example, it goes to a jury in Puerto Rico, and not once in the entire history of Puerto Rico, US relationships has a Puerto Rican jury in federal court imposed the death penalty. And that explains why since ‘52 has been constitutionally banned. So again, it's part of this dynamic process of sort of pivoting a little bit in terms of when we benefit, when the US Supreme Court does make landmark decisions that broaden rights, but when they fail, the Puerto Rican constitution is there. And because of its text, its content, its history, its structure, it's deliberately designed to be much more protective than the US Constitution. Not only does it have death penalty banned, and not only does it have explicit privacy protections, it actually outlaws discrimination on the basis of sex, which it not the same in the US Constitution. It has an enforceable right to education. It has a right to overtime pay. It's in the Constitution. So again, it's this document that we wrote, not just to mimic the US Constitution at all, actually aware of the short comings of the US Constitution, particularly as to rights. We kept the same blind spot with regard to the structure. But we purposely diverged in terms of rights protection. And many of those are very relevant today. And again, interestingly enough, the Puerto Rican Constitution serves as this sort of bridge between the US Constitution, state constitutions, and the constitutions of Latin America and other parts of the world, particularly ones that were adopted during, you know, moments of progressive atmospheres, which probably explains why this is the first book in the line of books published by the same publisher about Latin America and constitutionalism. Obviously, there's a big continent out there, right? We need to talk about all these great Latin American experiences. Why Puerto Rico, which is a small Caribbean Island? It's not even an independent nation. Why not start with Mexico, right? But at the same time, it makes sense because it is this bridge. Colonialism, you know, creates weird byproducts, and one of them is that Puerto Rico serves as a bridge to explain and to understand better, and to actually learn and maybe even incorporate things from the Latin American experience, from the state constitutional experience and from the US constitutional experience.

Simon:

That is fascinating how that all kind of works together and also doesn't at the same time. So returning to you…

Jorge:

Yeah. Exactly.

Simon:

Yeah. So returning to you and your book, obviously constitutional law is your primary area of study. And you mentioned to me before that this is your first book that has written in English. I'm curious as to what your inspiration for writing this book was.

Jorge:

Well, I'll start with maybe, you know, an exciting one, which was that there was this idea of approaching the different experiences of constitutionalism in Latin America. And the first, actually, I would believe, the first question would be to include Puerto Rico at all in the series, because you could, to have a colleague who also wrote a book, but as part of the series of state constitutions, and I wrote mine as part of the series in Latin American constitutions, and we could have just as easily been excluded from both two, as we saw at the beginning of our conversation with regards to the mundane things like online applications. Someone could have said, yeah, no, Puerto Rico's not a Latin American country, so we shouldn't be part of this. And then someone could rightly say, yeah, but Puerto Rico's not a state either, so it shouldn't be part of the state constitution line. So there was that. But also the opportunity, I think Puerto Rico's, every country has a rich history and everybody has contradictions obviously, that enrich their constitutional experiences, good and bad. But then Puerto Rico, again, because we are Spanish speaking, but part of the US so therefore our law is, so when I teach law in Puerto Rico, I teach 50% federal law, 50% state law. So 50% of the readings I give are in English, and the other 50% are in Spanish because I have to go from federal sources to state sources at the drop of a hat. So again, it serves first as this logical bridge. So because there are important differences between the US constitutional experience and the Latin American constitutional experience. But at the same time, there are important connections and bridges and conversations to have. And Puerto Rico can actually serve not only the bridge, but as a common point of reference in that conversation and the language of that conversation. But also because of my experiences when I lived in the US as a student, teaching both us constitutional law and Puerto Rican constitutional law, that sometimes, again, there's so much misinformation or just lack of, I don't say lack of clarity because it's inherently unclear and problematic, but in terms of actually talking to a non-Puerto Rican audience to explain what's going on and particularly to a US audience, because it's sort of like you broke it, you pay for it, not literally, but that, you know, there's this place that you invaded in 1898 and have never left, and we've been citizens since 1914, since 1917, sorry. But because the statute says so, not because the 14th Amendment says so. I think it's time to have that conversation, and too many times we speak to ourselves and then therefore are able to transcend our conversation to reach the US audience, which is a necessary part of that conversation. So I think that's sort of the goal here, to allow for more engagement, understanding, and hopefully change in the dynamic between Puerto Rico and the United States. Because obviously, on the one hand, you could say the current situation is unbearable. At the same time we bore it for 125 years. So what is it? Is it bearable or is it that we've been really stuck in a problem for 125 years, which has created a dysfunctional society in many ways? You know, colonialism has, even the most benign formula if such a thing exists, has dysfunctional consequences. So I think that would be the, the, the reason why, to continue that conversation. But instead of like this one-way comparison through the prisms we've discussed, so that we see how everything, every little element interacts and impacts the other one. So there's this very dynamic, contradictory, but dynamic at the same time process going on.

Simon:

Is there any specific message that you're looking for this book to convey, or is it more of just a general educating an English speaking audience on kind of the positive and negative relationship between Puerto Rico and the US or just Puerto Rico in itself in its own constitutional experience?

Jorge:

Yeah, I think one leads to the other. The educational experience also allows because that understanding, first of all, we will make sure that whatever conversation we have is based on firmer ground, because sometimes there's this caricature or this very one dimensional superficial view, and we can dispatch the Puerto Rican question in three sentences. Again, very superficially. But also, contradictory there’s a lot that the US can learn from Puerto Rico, not about Puerto Rico, not just learn about Puerto Rico, but learn from Puerto Rico. So we chose to constitutionalize important things. We banned death penalty. We have an explicit privacy protection. We have stronger anti-discrimination language because the US Constitution, you know, it's from the 18th century, it's not doing so well because it's like the Wright brothers’ plane. Thank goodness they built the first one, but I wouldn't ride that one right now. Right? The airplane engineering has progressed, but US constitutional law doesn't seem to have progressed that much, or at least it's reached its limit of what it can do under the current structure. And I just think that the same way many states are mirrored and took inspiration from the Puerto Rican constitutional experience for their own state constitutions, maybe Puerto Rico can also contribute to a conversation about the future of US constitutional law, both the good and the bad.

Simon:

Is there anything else on the topic that you'd like to mention before we wrap up?

Jorge:

I sort of try to convey at least the general approach that I take in the book, in the sense that for every one thing, there's another thing, and we have to account for both and see how those things impact our lives, particularly in terms of Puerto Rico, our collective life. And so hopefully that furthers the conversation and the discussion two way, which hopefully at one point Puerto Rico will be able to not be this permanent, you know, crisis story. That we are able to transcend colonialism, that we are able to finally achieve more and more democratic culture, and that we are therefore able then to build the society we want, which is a social project based on a community and a collective wellbeing of our people. So hopefully this is not the end of the story. Actually, hopefully it's the end of the beginning of the story. And we are able to finally transcend what has been these difficult barriers that we have resisted. We have survived, but at some point, we also want to thrive. And we cannot do that with colonialism. You can't do that with democratic deficiencies. You can't do that with frustrated attempts at social transformation. At some point something needs to change. Hopefully the book allows, guides us to the better alternative, which is to denounce and leave colonialism behind to finally again fill the democratic deficiencies and therefore allow our historical and social objectives to be able to come to fruition.

Simon:

All right. Well, thank you so much for chatting with me today. If any of our listeners want to give the book a read, we will obviously be including the link so you can purchase that. But thank you so much for your time today. Really appreciate the education.

Joge:

Thank you. Really appreciate it.

Simon:

You just heard an interview with Professor Jorge Farinacci-Fernós, a Visiting Professor of Law from the Inter-American University of Puerto Rico Law School. This has been the Baldy Center for Law and Social Policy Podcast produced at the University at Buffalo. You can learn more about the Center on our website, buffalo.edu/baldycenter. If you'd like to share your thoughts on this podcast, tweet us @BaldyCenter or send us an email at baldycenter@buffalo.edu. I'm your host, Simon Honig. Thanks for listening.

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