Jose Trías Monge: the dimensions of knowledge and power

    Jose Trías Monge: the dimensions of knowledge and power

    Carmelo Delgado Cintrón

    José Trías Monge was, since the thirties, the principal witness of the events here narrated, and an essential participant in the key constitutional developments that happened after 1947. Trías promptly became (inside and outside of public service) the principal legal advisor and a member of the intimate circle of Luis Muñoz Marín, leader of the governing party in Puerto Rico from 1940 to 1964, and the most powerful man of state until his death in 1980.

    José Trías Monge, a former chief justice of Puerto Rico who helped create the island‟s Commonwealth relationship with the United States, but later denounced it as a thinly disguised colonialism, died in June 24, in Boston. He was 83.

    For the students and professionals of Law of my generation, Don Pepe was an emblematic figure beyond ideological differences or affinities. We saw him, as the most intelligent, cultured, perspicacious and valuable member of the Puerto Rican juridical world. We admired his vast culture, his mastery of the language and his determination to broaden the limits of our constitutional warranties.

    One day Sir Walter Raleigh, jailed in the Tower of London …, was working, as usual, in the second part of his History of the World, when a fight started at the foot of his window. He amused himself looking at the contenders, and then he returned to his task, certain that he had observed them quite well. However, the next day when he tried to discuss that affair with one of his friends, that not only saw the fight, but also took part in it, he saw how inaccurate were his observations; and he pondered about how difficult it is to ascertain the truth when referring to distant facts, if there is confusion about the events that occurred in front of us. Then, he threw the manuscript of his book of history to the fire.

    En el teatro del mundo
    como en de las marionetas
    sólo entiende las figuras
    quien les tira de la cuerda.

    I. The Chief Justice

    On April 19, 1974 the learned jurist, Doctor José Trías Monge took the oath as Chief Justice of the Supreme Court of Puerto Rico. He succeeded the honorable Pedro Pérez Pimentel who retired on March 31, 1974. Until this moment, the tradition was to designate the senior Associate Justice. Governor Rafael Hernández Colón decided to change this custom and appointed attorney José Trías Monge. The new Chief Justice, a former Secretary of Justice, brought a large experience in the professional practice of law; serve as professor at the University of Puerto Rico Law School, and as legal counselor to different governors on constitutional law and the status problem. He was also a scholar, a humanist and a recognized student of literature. Trías also understood the functioning of government and political affairs. He was a witness and participant of the institutional power structure. A legist of profound experience, with a deep ethical concern and sense of history, a vast knowledge of culture and an intense sense of public service. Trías was a respected constitutional scholar. Two concerns marked his term of office besides the proper duties of his high office. He supported the preservation and reform of the civil law tradition of Puerto Rico. In addition, the Chief Justice endured in his research of the constitutional history and his plan to publish a monumental contribution to legal historiography. He was always interested in the status problem, of which he had been a witness and participant since 1948, when Governor Luis Muñoz Marín incorporated him as an adviser, confidant, and a member of his inner circle.

    Chief Justice Trías Monge conducted himself as usual, with dignity and decorum. Besides his judicial work, as Chief Justice and administrative head of the Judicial Branch, and authoring important decisions, he continued with his historical, legal and philosophical researches. A practical and theoretical jurist, he constantly wrote in newspapers and law reviews, making recommendations and giving his opinions on the reform of the law and judicial system. He was a key speaker in the General Assemblies of the Colegio de Abogados, the Bar, to law students, to the Judicial Conference, to the Legislative Assembly and to other professional and civic organizations. In a famous and controversial conference to the General Assembly of the Colegio de Abogados de Puerto Rico, he called for the preservation and reform of the civil law tradition, a historical heritage. He also promoted the reform and changes in the political and constitutional relations of the Commonwealth of Puerto Rico and the United States. Professor of law and courts administrator Eulalio Torres thinks, “The public service of José Trías was so varied and so ample, that to present and comment it is a synthesis challenge. In this essay, we discuss one of the fundamental tasks of his professional life: the defense of the highest values of the Puerto Rican judicature.”

    Chief Justice Trías started the series of his published books in 1978, with his Sistema Judicial de Puerto Rico. His decades of research in archives, libraries and documental centers of various countries about the constitutional and political history for his projected book in multiples volumes, culminated in the last years of the 70‘s. The University of Puerto Rico Press started to publish the vast Historia Constitutional of Puerto Rico in 1980. This original book fills a gap in the studies of constitutionality; there was no such book in our bibliography, until then. In the last quarter of the century (1980-2005), no other book of this category appeared in the constitutional scholarship. The series is an exceptional contribution, of critical content, elaboration and interpretations of facts, and in addition, they are in a certain sense, the political memoirs of the author, as marginal personal comments abound in the last chapter of each volume. Trías was in his sixties and had been Chief Justice for the last six years when the series began. One of the motives for making his thoughts public was to give the students and researchers interested in these fundamental events, his point of view and perspective. Trías‘ leading role made his testimony unique.

    The series grew to five dense volumes, full of new perspectives, historical facts, confidential documents, conversations and strategies in Puerto Rico, the Federal Government and the Congress. The key events and participants from various areas of political persuasion in the island and continent are discussed from an interesting and poignant point of view in these indispensable volumes. Some readers think that Trías should have continued the series and finished it in the last days of the XX century, he had the historical facts and constitutional documents, but maybe he did not want to do it, as there were too many tasks or other projects demanding his attention.

    His experience, his dominion of the science of law and his profound knowledge of culture and sociological facts, permitted him to treat at razor edge controversial political facts and processes. The book could have exposed a more detailed version of the facts but the recentness and controversial nature of the events and the perennial discussion of the status question prevented it. As it is, the Historia is a colossal narrative of the most significant, fundamental and political process espousing the Puerto Rican pursuit of freedom, and our persistent fights against colonial subjection from different points of view, and diverse political persuasions. It is a sad narration. Besides the constitutional interpretation and the juridical facts, the author, as said before, offers us his peculiar and acute opinion about the constitutional process, its participants and the political leaders. Some examples are his evaluative and comparative portraits of Luis Muñoz Rivera, José Celso Barbosa, Luis Muñoz Marín, Pedro Albizu Campos, Antonio R. Barceló, Luis A. Ferré, and others. Also in the book are the interactions of different status options such as the independence, the autonomy, the free association and the statehood. The attentive readers and student enjoy the commentaries because of the author‘s vast experience in these matters. At the time of his passing Trías was preparing his personal memoirs, he barely finished them in time.

    II. The Oldest Colony

    The labyrinth of the 1930‘s, was were numerous aspirations, exigencies, demands, impositions, hassles, disturbs, burdens, violence and aggressions intertwined, were conveyed up and about because of the problem of colonial subjugation to the United States. This decade was an era of total crisis. All the proposed alternatives of status and political conduct were in public discussion and display, there was political passion and controversy. It was the time of radical nationalism, communist revolutionaries, rebels, pendularians, autonomists, annexionists or stakeholders, idealists and opportunists, and other political fauna. Those were the decades of extreme violence and desperation caused by the ethos of the colonial submission, the economic dependence and exploitation, the extreme poverty, lack of education of the masses, and our unbearable lack of freedom. Never has our nation governed itself without the authoritarian interference from other countries. First, it was founded as a colonial establishment or province of the Spanish Crown until 1898, then another foreign power invaded our Island and we passed as a colonial dependency to the United States. Others decided our destiny. Cuba, also invaded, was recognized as a sovereign republic after the constitutional convention approved the American exigency of the integration of the Platt Amendment as a component of the Cuban constitution. A republic, although subjugated by the United States, as said in Spanish, mediatizada. After that year, the United States Supreme Court pronounced Puerto Rico a dependency after the insular cases decided the Island an unincorporated territory. Our nation, Puerto Rico, is subject to the authority of the American Congress by the powers of the territorial clause of the Constitution. After a short Military Government of two years, Congress approved the Foraker Act that inaugurated a very limited and restricted civil government. By the Jones Act of 1917, some reforms were passing through Congress as a concession for the natural inhabitants. Some of these were legislative collective granting of the American citizenship for all Puerto Ricans and an elected Senate. That colonial regime continued with designated American Governors, the appointment of the governmental secretaries, justices of the Supreme Court and other important officers by the President of the United States, and later confirmed by the U. S. Senate. Above all reforms, the superstructure of dominance continued, as all the fundamental decisions depended on the federal executive or legislative branches. Certainly, after the 50‘s constitutional process, the allegory that the Puerto Ricans controlled the government was in the political atmosphere, they talked and announced the end of the colonial regime, that a contract between the United States and Puerto Rico (in reality the colonial power and the colony) permitted the natives to govern and dominate all the internal and external affairs. But that internal government and dominion, at the interior or exterior yielded after the absolute power of the federal executive; the jurisdiction and power of the United States District Court for the District of Puerto Rico, called “la Corte Federal”; the court of appeals in Boston and the Supreme Court of the United States. The colonial style brought problems of all kinds, e.g. political, economical and spiritual. However, the pursuit of liberty is an embedded characteristic of the majority of our people.As the intellectual cosmopolitan thinker Eugenio María de Hostos explained, our people received the American troops under the understanding that they had come to liberate Puerto Rico from the Spanish imperial rule and were going to constitute the Island into a free and sovereign country. Soon they understood the reality and as early as the new American administration began to evolve, the new fights and different projects for liberty began. A sector of our people wanted independence, others a territorial autonomous status, and a fraction, that the island becomes a state of the Union. Then there was no one advocating for the status quo, now there are people complacent with the status quo of the colonial regime. Our people longed for the Puerto Ricans to govern and control our country. Nevertheless, the colonial status and government continues. As David Kenneth Fieldhouse said in his book, The Colonial Empires: a Comparative Survey from the Eighteenth Century, “The basis of imperial authority was the mental attitude of the colonist. His acceptance of subordination -whether through a positive sense of common interest with the parent state, or through an inability to conceive of any alternative- made empire durable. “One must remember a saying of Benjamin Constant: ” The major triumph of tyranny is to lead the enslaved to think they are free and let them proclaim it.” The revolutionary leader and jurist, Segundo Ruiz Belvis wrote in 1865, ” Between slavery and liberty, there is no intermediate stage.” He wrote this as part of the Report on Social Reforms of the Junta Informativa de Ultramar, an informative overseas board of the Spanish government in Madrid.

    We, the Puerto Ricans, are in a state of perennial struggle of a different type to obtain our liberty and sovereignty after the inauguration of the American territorial regime in Puerto Rico -the Foraker Act- May 1, 1900. The People of Puerto Rico do not covet nor desire to be a colonial dependency of the United States or any other country. We are a liberty loving community. The people of Puerto Rico have recurred to different strategies and actions to obtain the emancipation of colonialism, to acquire our political and constitutional freedom and the sovereign power that would prepare us for total self-government and reach our own place in world affairs in peace and compliance with the international customs and law. It‘s important to mention the different strategies and diverse actions that are needed in order to achieve those attainments: we have appealed to the electoral way; to pacific and civic protest; to the legislative manifest; to the literary and poetic protest; to the exigencies of our representatives, to civil institutions like the Ateneo Puertorriqueño, Asociación de Maestros de Puerto Rico and Colegio de Abogados de Puerto Rico; to personal sacrifice; to the judicial resources; to the political institutions in our country and the international forum, like public hearings in our Senate and House of Representatives and the Decolonization Committee in the United Nations and other world organisms; personal visits of our leaders, (since Eugenio María de Hostos, Julio J. Henna and Manuel Zeno Gandía visited the White House to talk with president William McKinley about our rights); until recently the yearly long protests for the ex-pulsion of the U.S. Navy from the Puerto Rican Island of Culebra and Vieques. We resorted to violence of a different kind; from the personal to the armed insurrection in the Island, the armed attack to U. S. Congress and Blair House, we have prepared law briefs, historical and sociological articles, monographs, and books explaining the circumstances. Despite the fact of all that effort, we are still a dependency of the United States and they have the ultimate say in the most important matters that concern us. Portions of the people of Puerto Rico are accustomed to this kind of life and feel that they live their lives as if they are in dreamland. The colonial system of government and the way of life that it generates created from the beginning a dreadful economic and social situation that brought the crisis of the thirties. A debacle of such magnitude that corrodes and dismantles the foundation of our society and had a deleterious effect upon our nationality. These colonial submersions undermined and obliterated, in the cultural aspect, the natural language of the Puerto Rican people, the Spanish language, the key to our cultural traditions and the icons of our most cherished cultural customs. The economic crisis incremented decade after decade for different reasons: the sugar monopoly, the economical and financial absentee‘s interests, the gross unemployment, and our perpetual dependency of the American market. After Homer, poets have translated the dreams of their people; let us remember one of our own, Luis Llorens Torres, who was also a jurist. He remembered the colonial exploitation in his poem:

    Receipt of overdue interests

    December 31, 1938 of Jesus:
    Year 40 of the Yanqui domination in Puerto Rico.
    In this year, today closing out,
    fifty millions dollars flew from our pockets
    to the United States market,
    like in all the years that have passed
    since the Yanqui invasion in Puerto Rico.
    Fifty millions for products that we could acquire
    in other markets, only for twenty five,
    by half, if Puerto Rico was independent;
    if the colonial regime with its damned tariff
    did not force us to the United States market.
    Example: the seven million that we consume in rice,
    would cost us three millions if we bought them in other places.
    Thus this is how us, so poor, so least,
    tribute annually twenty five millions,
    Twenty-five!
    to the people in America that have major wealth and power.
    Twenty five millions, that in forty years of dominion,
    sum the thousand millions that the poor Puerto Rico
    has given to the millionaire people of the United States.
    That Franklin Delano Roosevelt is a thousand times blessed.
    Because of him, with the enigma of the P.R.R.A.–that deciphered and translated means ” Economic rehabilitation of Puerto Rico “-,
    has returned to us a hundred millions and a half: paying us in part the very overdue interests of the thousand millions of dollars that we had already taken it for lost.

    III. “The United States has no Colonies! Yes they have them!”

    A. At the gates of power.

    The rigorous education received, from 1936 to 1947, not only gave Trías the access to learn in diverse disciplines, like litera-ture and law, but the time in which he studied was a decisive moment in the history of Puerto Rico, the United States and world affairs. The young lawyer had, because of his profound intelligence, his intellectual bearing and his relations, access to the power structures in the Island and in the States, the unique opportunity of offering his ideas; views, opinions and advice in important and crucial questions that arose in the decisive moments of the constitutional processes that were developing in those years. Few had these opportunities. He was not the only one though; other lawyers, economists, historians, technocrats, university professors, and politicians formed the intimate circle of the singular politician, poet and newspaperman Luis Muñoz Marín. Trías occupied a privileged position.

    It is necessary to bear in mind, that to understand the maze of political realities, the dimensions of power, those who came near it, enjoyed it, served it and made use of it, were placed in a situation that demanded and required total moral support and loyalty, both in private and in public, to the powerbroker. Under the exercise of power, there are decisions to take based on controversial and compromising circumstances that are deemed necessary by the person or politician with the power to do so. All of these decisions go according with the philosophy, the political party platform, personal loyalties, or the rule of political necessities that are expounded by the person in power. In those moments the decisions that are made, the compromises that are borne, the direction in which they transit, all appears to be fine and correct. By the passing of time and the changing situations, new interpretations, and the sedimentation of political passions, the decisions taken under past circumstances are viewed from another perspective. The results differ on a personal level from man to man. The decisions made and the advice given creates in some, a bitter disappointment, in others a full moral sense of duty accomplished and still others do not care about the results of their services. As time passes new generations with fresh perspectives and novel historical facts, produce new critical interpretations of the aforementioned decisions. We must remember Jorge Manrique and his Coplas, where he envisioned the moral impact and the fragility of the exercise of power, also Luis Llorens Torres in his moving poem Valle de Collores, a remembrance of all his past triumphs, glories and loves writes:

    Ah, glory is a vain dream.
    And pleasure, only wind.
    And richness, torment.
    And power, a glum worm.

    Professor of law and a poet, Efrén Rivera Ramos, in his commentaries of the Constitutional History of Puerto Rico manifests that:

    “It must be made clear, since the beginning, that Trías deals with a vast conception of what constitutes, sorry for the redundancy, the Constitution of a country. For constitutional developments he understood, not only the changes in the formal documents, but also the transformation in the process of government, in the practice and constitutional arrangements, in the real distribution of power, and in the connection of the political relations of the diverse actors of the collective scenario. In the previous volumes, we have seen him use the concept of ‗real constitution‘. He also calls the efforts to modify the status of our country constitutional events, even if they end up frustrated. This augmented conception lets him analyze in detail events that even if they do not culminate in neither real nor formal changes, pass to be a part of the history of the continuous struggle around the political power. This is of course very legitimate. In fact, Trías Monge provided us with the recent history of developments that will serve as bases, precedents and context of future events. When those events happen, whatever their meaning, a consult with the narration of Trías will render a better understanding of them.”

    B. Shepherd at the same time of a thousand lions and lambs.

    Between the decade of 1936 and 1947, numerous events, occurrences, circumstances, transactions, and actions offered the young attorney a fine education, a solid reputation, personal and professional relations, and opportunities to get involved in the constitutional processes that were evolving during the long governorship of Luis Muñoz Marín. He also served as a consultant to governors Roberto Sánchez Vilella, Rafael Hernández Colón and Sila María Calderón. His extended public service initiated when he became a law professor, a life vocation, and culminated with his designation as Chief Justice. His more than forty years of experience, inside knowledge and studies prepared him for the task as a contributor to the constitutional historiography. It was a duty to leave his interpreta-tions. The foundation of the “Partido Popular Democrático”, the Popular Democratic Party, in 1938 established the political and institutional conditions for the access of Trías to the leadership of this organization as an advisor of Luis Muñoz Marín. His role as a legal consultant to this singular politician began before he was elected president of the Senate in 1940. Muñoz, with his personality, his vigorous leadership, his vision, his personal influence, contacts in the United States and ascendancy created the conditions for this fruitful and productive collaboration between the strong politician and the jurist of superior intellect who had a profound knowledge of constitutional matters. After eight years in the Senate, Muñoz Marín was elected the first Puerto Rican governor elevated by the suffrage of his fellow fellow citizens. The governor and his party understood the elections as a mandate to resolve the status dilemma in a new direction, not the traditional Independence, Autonomy or Statehood. The year 1948, marked the initial proceedings to a new arrangement. Trías had two paths to follow as a public servant: as an elected member of the Senate or the House of Representatives, or as a member of the cabinet, or a constitutional advisor to the governor. After some doubts and accepting a slot as a candidate in the House, he declined the first and turned to the second possibility.

    The plans to create an apparently new constitutional status were discussed by the public opinion in public forums, as they talked about a reorientation of the traditional options of the political condition or status of Puerto Rico. There was enthusiasm in all political persuasions, “populares”, “estadistas” and “socialistas.” Opposing this approach was the recently founded Independence Party of Dr. Gilberto Concepción de Gracia41 that expected the status of Puerto Rico would be resolved in terms of independence, liberty, sovereignty and democracy, the foundation of the Republic of Puerto Rico; and the Nationalist Party of Dr. Pedro Albizu Campos with an uncompromised, violent and armed attitude toward colonialism. In the official circles initiated intense and complex negotiations, in the Puerto Rican Legislative Assembly, in the political parties, in “La Fortaleza”, in the Interior Department, in the State Department, in the House and Senate committees and other important centers of political and policy decision-making in the States. In addition, the University centers were involved. A new kind of political arrangement was created without the participation of the independence sector that opposed it as a kind of crude disguised form of colonialism. After the constitutional proceeding of 1950-1952, when the United States Congress, by legislation authorized the people of Puerto Rico to convoke and to hold a Constitutional Convention, this document was drafted establishing a new political arrangement. The constitution they drafted was for a territory but it was disguised, as a political condition that planned to solve the perennial status problem. The document, the Constitution, was submitted to the U.S. Congress for ap-proval but that body ordained that a section of the Bill of Rights of the Puerto Rican Constitution had to be suppressed as a condition for endorsement. The Constitutional Convention in San Juan reconvened and complied with the Congress man-date. The U. S. Congress then approved the Constitution of the Commonwealth of Puerto Rico. The political body legislated received the designation of Estado Libre Asociado de Puerto Rico. The translation to English of that would be Free Associated State. It was preferred to the dubious word of Commonwealth of Puerto Rico. The constitutional processes closed, but almost immediately, began the initiatives to change the Commonwealth and its constitution requesting Congress more powers and delegations; there was a profound dissatisfaction with what was instituted in 1952 in governmental, political and civil sectors. This new policy of change and reforms of the colonial relationship of the status prepared the new collaboration of Trías Monge and Muñoz Marín on constitutional matters and in governmental affairs.

    In 1948, the Governor was Jesus T. Piñero a presidential appointee. The Legislative Assembly was of popular democratic majority, Luis Muñoz Marín was the president of the Senate, and Samuel R. Quiñones was the speaker of the House. The majority, a Puerto Rican version of the Smith Act, presented a new Bill. The aforementioned law was duplicated by the “P. of the C. 23, P. of the C. 24 and P. of the C. 25.” There was opposition in many sectors for the repressive nature of that legislation. Trías published in the daily El Mundo “the projects number 23, 24 and 25 of the House are constitutional.” The legislative majority, the “populares”, suspended the rules and no record was taken. Dr. Leopoldo Figueroa, statehooder and a member of the House of Representatives, opposed that repressive legislation and baptized it as “La Ley de la mordaza” and the name stuck forever.” Those projects were signed to law by Governor Piñero, number 24, as Law, was approved on June 10, 1948. They would be used later to persecute independentists, communists, nationalists and other citizens that differed from the official credo. Historian Ivonne Acosta in her book, La Mordaza manifested that:

    Finally, in the dawn of May 21 the Legislature of Puerto Rico approved the projects 23, 24, and 25, ‘requested at last hour of that same night by governor Piñero,’ that penalized all action against the government and they were immediately related with the riots in the University of Puerto Rico. That we know, nobody related them with the fact of the arrival of the delegates and advisors of the Caribbean Commission that were meeting in San Juan on May 24.

    Dr. David M. Helfeld, dean and professor of law affirmed in his monumental monograph, Discrimination for Political Beliefs and Associations (1964) that:

    “If Law no. 53 had been used only against Nationalist leaders, in prosecutions which were scrupulously obedient to norm of criminal law, wherein punishment was meted out for aggressive consistent advocacy of violence to men who were armed or planning forcible overthrow of government, one might briefly conclude that a wise balance had been struck between the competing demands of freedom and authority. However, Law no. 53 was not administering restrictively; rather it was applied indiscriminately against leaders and followers alike. It was used to harass and intimidate persons and groups that were in no way connected to the uprising of October 1950. In a significant numbers of cases, there was repression without any justification in enhanced community safety. The rights, which were adversely affected in the process involved a substantial catalogue: freedom of speech, of the press, the right to peaceful assembly, the right to equal treatment, bail, the right not to be deprived of liberty without the due process both in form and substance, and the right not to be held up to public calumny solely on the basis of ideology, association, or state of mind.”

    This atmosphere pervaded our society, an environment of repression and persecution. Remember that in the middle of the nationalist insurrection professor Blanca Canales proclaimed in the town of Jayuya, for the second time, the Republic of Puerto Rico on October 30, 1950. Some months later on March 5, 1951, the leader of the parliamentary majority, Senator Luis Negrón López, declared in the hemicycle of the Senate that the Nationalists that took part in that revolt were heartless and wicked. Some weeks later, the Senator expressed that:

    “Before, when an emergency arose during the last days of the preceding year, when a gang of callous persons provoked mutinies, the governor would convene the Legislative Assembly to an extraordinary session in which legislation would be approved warranting the organized govern-ment against this kind of dealings.”

    “We approved a law declaring incompatible working in the government as an employee and to be a member of any organization that advocates the overthrow of the government by force and violence. I have confidence in the efficacy of this instrument as a measure to warrant against the theories and individuals that are enemies of the governmental institutions.”

    Senator Negrón López, responding to press declarations in newspapers in the United States about the temperament of Governor Muñoz Marín, asked the Senate to approve a bill establishing a commission to study those opinions. Senator Negrón López‘ bill reads as follows:

    “To request of the governor to enlarge the summons to approve a bill establishing a commission to study the problem… investigate the circumstances, and giving it power to initiate contempt proceedings against any person that supplies or publishes any information that obstructs the development of the plans of the Puerto Rican government.”

    C. The pursuit of liberty

    The initial decades of Trías‘ involvement in the public debate of status was the moment of the participation of various generations of Puerto Ricans, e.g. 30, 40 and 50. Those notable men and women understood that their mission and responsibility to their country called for the obliteration of the colonial conditions that ballasted liberty. Almost all the alternatives to the solution of the status question have Liberty ingrained as a desideratum. Hostos, one of our profound thinkers, said that liberty is “founded in the perfect right that we have to give it to ourselves in a juridical body formed and constituted by us…”The conception of a democratic, free, and sovereign constitutional regime based in liberty was a necessity. As Ahrens postulates in his Curso de Derecho Natural, “liberty is the safeguard of all other liberties; it is the liberty in which the nation, in its entirety and in the public conscience, protects all the parts; all the members; it is the common atmosphere where all the other liberties inhale and develop.”

    Let us say in clear and plain words, that all sources of power and decisions have their base and origin in Puerto Rico. The colonial system of life propitiates the most abject dependency, impounds the fair distribution of wealth, and foments the continual and incessant violence of wide sectors where deprived citizens lack everything. In the sphere of the spiritual life the dominance and colonial dependence causes devastation, forging new styles that are used to command people that do not appreciate their own kind, requiring continual efforts for them to have faith in the dignity and destiny of the Puerto Ricans. The United States, unremitting colonialism in Puerto Rico; be it crude, be it subtle, being self-governed in areas the facts are clear, from the United States Customs to the United States District Court functioning in San Juan, most of the U.S. agencies have unrestricted jurisdiction upon our daily life. In the year 2003, the U.S. State Department, headed by Secretary Colin Power, prohibited Governor Sila María Calderón from relating with the other governments of Latin America. ¡Washington commanded us not to communicate and continue our centennial relationship with the continent that is our historical orb, the countries we have been affiliated to for more than five hundred years! We, the Puerto Ricans, are not a group of American citizens living in the Caribbean. The People of Puerto Rico are a nation of Hispanic American heritage with their own natural language, the Spanish or Castilian language, their national culture and distinct nationality, and are very proud of this legacy.

    It has been argued that the plebiscite celebration in our country has given legality to the presence of the United States in Puerto Rico. That is not so. The acquiescence of the colonial subjects has no moral or legal value if the colonial power or their mandataries, representatives and its institutions, remain in place. The will of the people is intervened with. It is an old principle of International law, state and was expressed in public in 1539 by the Spanish jurist Fr. Francisco de Victoria, O. P. in the University of Salamanca, where he was a professor of Theology. In his magisterial lecture Reelection of Indies, he said that the presence of the imperial power enervates the free will of the colonial subjects and they cannot express freely their opinion. The people subjected to colonial and imperial power must be libérrimos, e.g., Free from coercion. Is the plebiscite valid? Victoria affirms that: “All people, by natural law, are called to constitute a State and to form freely their historical destiny.” The Spanish internationalist Fernando Vázquez de Menchaca reaffirmed that principle when he stated, “attending natural law, all men are born free and are not subjected to the jurisdiction or dominium of others.” Hostos, after the military invasion, points that, “Puerto Rico is a person of wrights that has not been able to lose any of his national prerogatives by a war that he has not made; that wants, can and must exercise his will and determination.” In addition, he said, “the plebiscite [is] the safeguard of the dignity of our country,” “the transference of dominium should not have been followed by the cession, instead, a consultation of the will of Puerto Rico in a free plebi-scite should have.” It is necessary to remember the words of Hugo Grotius, in his The Law of War and Peace (1625), “There exists a natural right, eternal and immutable, that is not subjected to the changes inherent of different epochs and places.” One of our most beloved national poets, a former jurist and President of the House of Delegates, José de Diego, pondered the thoughts of Grotius in a famous poem that is part law and part literature, titled Aleluyas, A los caballeros del Norte. There he explores the theories of international law of the American jurists that endorses their expansionism, which as he said puts the Philippines Islands near California. De Diego‘s poem:

    We know the mysteries of Philosophy
    In addition, of the Art in which reigns the saintly Poetry.

    However, we know nothing, in the country of the sun,
    Of the Arts of the Government, like in Tammany Hall.

    Nor we know of the mortal leap of the doctrines,
    That put California at the feet of the Philippines.

    Forgive, Gentlemen, if we are unconscious
    Of your conceptions of the Jus Gentium.

    We ignore the sublime conceptions,
    That conferred to you the symbolic Island of the Thieves.

    We ignore, in these historical reverses,
    The language and the sense of the English people.

    We talk another language, with other thoughts,
    In the wave of the spirit and the wave of the wind,

    Moreover, we have been telling you,

    for a long time, in the two,
    To go away with the devil and leave us with God.

    The defense of the predominance of the Castilian language in our country and the promotion of our culture are unavoidable duties. The civic acts of all kinds against the rampant colonialism of personal and institutional character, in favor of liberty, Puerto Rican affirmation, and Caribbean solidarity, in the past and in the present time, are comprehended in the context of their creation. We understand that the actions of politicians, jurists, academics, activists, scholars, feminists, and workers happen in diverse contexts, possibilities, ideologies and particularities that once achieved are subjected to different interpretations. In a colonial society, the broad horizons and the ample actions to combat the blemish of dependency must be expected. Only with the passing of time, we can comprehend and understand; we must be generous and broad of mind and perspective because what matters is to promote our liberty and sovereignty, with friendship to all and in peace. The struggle for those ideals needs to employ varied strategies. We must recognize the value of different approaches. Sometimes, a society like ours, a gesture, a book, support, a judicial opinion, a pastoral or ecclesiastical one, an encyclical one, a monograph, a professorship, a poem, a picture, a song, a dissertation, a discourse, the foundation of an institution, a radio or television program, a foreign visitor, a newspaper column, the sacrifice of a life to high ideals, all have an effect in the collective psyche.

    The task of fighting colonialism is a very difficult undertaking, but a necessary one. This is a centenarian struggle that congregates the most superior spirits of our people. The United States does not recognize that it has colonies. Edward W. Said wrote in his book Culture and Imperialism, “Curiously, though, so influential has been the discourse, insisting on American specialness, altruism, and opportunity, that imperialism as a word or ideology has turned up only rarely and recently in accounts of United States culture, politics, history.” In one of his last writings, Trías made firm and hard indications that the followers of the Commonwealth, the estadolibristas, did not want to be aware of Trías said:

    “To recognize these limitations does not diminish the Commonwealth [Estado Libre Asociado], but clarifies the need to complete its great promise and facilitate the understanding by the United States, of its unjustifiable inattention to the problems of liberty that Puerto Rico still suffers. In the last fifty years, we have requested, many times, reforms to the status, and the reaction of the Congress has been one of strangeness. Why, they ask themselves? Do they not live in the better of the two worlds possible, with powers comparable to those of the states of the union and less responsibilities? The scarce times that we have insinuated, although in an oblique and esopic form, that we are a colony, the typical reaction has been of choleric tone. They said The United States do not have colonies! Yes, it has them! In addition, our duty, under the inalterable appreciation we have for this great country, whose citizenship we share with pride, is to indicate the nakedness of the emperor.”

    Let us contrast these words of Trías with the official statement of the chief counsel of the Office of Territories, Irwin W. Silverman, before the United States Senate on May 6, 1952. Silverman said, “As I pointed out earlier, the paramount power over our Territories is in the Congress of the United States under the Constitution of the United States and the Congress of the United States could, at any time, determine what course of action it would wish to take.” Later, on questions by Senator Long, Silverman affirmed: “I would basically say there would be power. There is nothing that can remove any bit of power that is in the Congress of the United States.” In addition, the opinion of the legal advisor of the Department of Justice, Harold Reis was in the effect that “Congress retained its full undiluted power over Puerto Rico.” The phrases of Senator Olin D. Johnston, said in the Senate on June 23, 1952 that, “We are, under the Constitution of the United States, retaining our rights over Puerto Rico.” We cannot forget the others words of Senator Johnston that seem to belong to the Kafka world or the nonsense of Alice in Wonderland. He said:

    “For what we have given to Puerto Rico, we have re-ceived nothing in return. For the millions of dollars we have expended on Puerto Rico we have asked nothing in return, either by way of taxes or otherwise…”

    “Then he added, “I think that we have been very good with the people of Puerto Rico. On respect to the Con-stitution of Puerto Rico, I can say that we can approve a constitution or not. I want the Puerto Ricans to know this.”

    A statement of Governor Muñoz Marín expressed in the House of Representatives on March 14, 1950 during his testimony before the Committee, set the tone of the proposed constitutional reform. The Governor said,

    “If you have any doubt about the people of Puerto Rico, you can put in your law of authorization ‘you cannot do that‘, ‘you must include a bill of rights‘, ‘you can do this and this others‘ and put twenty things like it, but if you do that, you destroy the principle of self-government.”

    Congressman William Lemke replied to the Governor‘s statement, “However, the minimum must be the goal when talking about concessions.” Then, the Governor replied with words that marked the Commonwealth and its Constitution, and demonstrated that he knew the political reality of that body.

    “You know, of course, that if the people of Puerto Rico should go crazy, Congress can always get around and legislate again it. But I am confident that the Puerto Ricans will not do thinked that invite congressional legislation to revoke something that was given to the people of Puerto Rico as good United States citizens.”

    The Puerto Rican Resident Commissioner in the United States, Dr. Antonio Fernós Isern, replied with words that would follow him forever, “the authority of the Government of the United States, of the Congress to legislate in case of need will always be there.” Years later Ferns Isern tried to lessen the value of the declarations of the Governor and the Resident Commissioner. He wrote, “some have interpreted the commentaries of Governor Luis Muñoz Marín and the Resident Commissioner as accepting that Congress retains its plenary powers upon Puerto Rico after Puerto Rico adopts its Constitution, just like before.”

    It will not be like before, but the declarations are clear and precise. They reveal an acceptance of the powers and faculties that the Congress and the federal Executive claim to have over Puerto Rico. About this, professor Roberto Ariel Fernández commented:

    “The anguishes of the authors of the Constitution of Puerto Rico were substantial. Congress that was paternalistic, stingy, distrustful, conservative, and that had no interest to transfer its powers over Puerto Rico -not very dif-ferent to the recent Congress- compelled the members of the Puerto Rican constitutional convention to submit ‘the most inoffensive constitution possible.‘ That‘s why the tone in which the constitution was legislated…was of rigorous orthodoxy, an orthodoxy imposed by the conservative Congress and that in effect operated …like an unwritten law of bases.” They wanted to avoid Congress from making any changes to the Constitution, because if this occurred, then Puerto Rio would have to accept them as a prerequisite for approval and effect. Nevertheless, the caution of the constitutional assemblists did not prevent the Congress from amending the new Constitution, the truncated constitution. Regrettably, the new creature was not the product of a natural constitutional genesis, but a colonial monster badly disguised as a democratic process.”

    “ Muñoz and Fernós consequently tried to persuade the congressional representatives and senators to facilitate the approval of the unpretentious Law of Bases and they authorized the Puerto Ricans to frame a constitution. What inevitably resulted of such processes was something that cannot be called Constitution; it was not the consequence of the constitutional power that all countries must exercise. Congress controlled the process from the beginning. Those vigilant eyes had a considerable effect over the text that the Puerto Rican Constitutional Convention redacted. The caution of the Convention did not prevent Congress from amending the document and conditioning its approval to the acceptance of these amendments. For this and for the supremacy of the United States Constitution is that Puerto Rico lacks a Constitution and a constitutional law of its own. The Constitution and the American Constitutional Law reign in Puerto Rico.”

    “All the before mentioned dramatize the insistence of the constitutional doctrine that proclaimed that the constitutional power that is not preceded or limited by law, act or entity is the only valid. The constitutional will cannot be subjected to a political power that usurps or invalidates the people‘s sovereignty. The only valid reason for framing a Constitution is the interest or necessity of a country in constituting itself, politically and legally, thorough a fundamental law that prevails over any ordinary law approved, executed and availed by the constitutional powers. The constitutional power of the people cannot be restricted, limited or constrained, because then its origin is not democratic. The Constitution is a juridical norm created by the constitutional power, but, by being the peoples‘ creation, that exercise of power has to be of supreme hierarchy, higher than the other norms and laws of the legal system. The democratic principle of the popular sovereignty is only imposed in practice if the Constitution that the people ap-proved becomes the supreme law of the land, if the legal formula of the constitutional supremacy is established without ambiguities. The constitutional process that occurred between 1950 and 1952 did not comply with the imperatives that the constitutional history and law have demonstrated are indispensable for the triumph of democracy over the illegitimate exercise of power.”

    IV. Harvard and Yale University

    José Trías Monge registered in the University of Puerto Rico when he was 16. After a rigorous course of studies he graduated first of his class in the Faculty of Arts and Sciences obtaining a Bachelor‘s Degree with specializations in Literature and Social Sciences. He continued his studies in Harvard University enrolling simultaneously in law and literature. He finished his Master of Arts in Romance Languages and Literature in 1943, and his Bachelor of Law in 1944. In Law School, he was a disciple of Roscoe Pound, Edmund Morgan, Thomas Reed Powell, Austin Wakeman Scott, among others. He was a teaching fellow during his last year under the mentorship of Professor Ford. During his stay in Cambridge, he assisted to literary meetings, poetic reunions, and musical festivals and participated in legal, cultural, political and academicals discussions. There he exchanged ideas, talked, and discussed with his young friends Lino J. Saldaña, Luis Felipe Sánchez Vilella, Pablo García Rodríguez, Abraham Díaz González, and Marcos Ramírez with Raúl Serrano Geyls, Marco A. Rigau, Senior, Vernon Estevez, Pedro Muñoz Amato, and Eladio Rodríguez Otero, “all full of honors of different kinds.” Each and everyone made serious and important contributions to the development of the legal and constitutional knowledge, the formation of new styles of judicial administration and the teaching of law.

    Trías returned to Puerto Rico, Dean Manuel Rodríguez Ramos and Chancellor Jaime Benitez, his old professor of social sciences, appointed him professor of law, and he began his professional private practice of law. He also taught in the “Departamento de Estudios Hispánicos.” Later, Trías enrolled in Yale Law School to study for his doctorate in Juridical Science. During his stay in Yale University, he maintained a scholarly and friendly relationship with different personalities that would later influence in his life, like Abe Fortas, Phillip Cohen, Myers McDougal and Rexford Tugwell. In 1947, Trías established a lawyer‘s office in a professional partnership with Lino J. Saldaña and Luis F. Sánchez Vilella. His private practice of law continued until his appointment as chief Justice, with some interruptions made for public service. Then, when he retired, he returned to the practice of law, wrote new books, taught in the University of Puerto Rico School of Law and founded, with a group of jurists, the “Academia Puertorriqueña de Jurisprudencia y Legislación.”

    Abe Fortas

    As we mentioned before Trías ascertained new friendships during his Yale years. One of them was with Professor Abe Fortas. This talented attorney had a strong commitment to the affairs of Puerto Rico, the Philippines Islands, Hawaii and other dependencies, since he was the Undersecretary of the Interior Department and supervisor of the insular affairs that dealt continuously with them coordinating the Division of Territories. Fortas acted upon these duties from June 14, 1942 to January 15, 1946 under the leadership of Harold Ickes, the powerful Secretary of Interior of President Franklin Delano Roosevelt.

    After studying in Yale Law School and serving as Editor of the Yale Law Journal, he was appointed professor of law. In 1933, he left for Washington to work as a Legal Counselor of the Agricultural Adjustment Administration [AAA] under the aegis of Jerome Frank, the general counselor. In the AAA Fortas received a solid training that transformed him into a fine, gifted and able lawyer. He left the AAA to work in the Securities Exchange Commission, where his mentor William O. Douglas, also a Yale professor, worked. He stayed in the SEC and in 1937 he became the Assistant Director of the Public Utilities Division. Then, in March of 1939, President Roosevelt appointed Douglas as Associate Justice of the Supreme Court. Fortas seeked a transfer to the Department of Interior and was appointed General Counsel of the Public Works Administration [WPA]. After the President transferred the WPA to the Federal Works Administration, Fortas chose to stay with Secretary Ickes. In Interior, Fortas accumulated a vast experience of administrative law, judicial and quasijudicial practice and the legal aspects of energy. His new mentor helped advance the career of the young lawyer. He ascended to be the number two in the Interior Department. The relation with the Puerto Rican affairs was large and, almost on a daily basis, he communicated with Governor Tugwell and the Puerto Rican leaders concerning a wide range of affairs and legal matters.

    After Abe Fortas left the government service, he established a legal office in Washington with Thurman Arnold, Arnold & Fortas, and then they changed to Arnold, Porter & Fortas. Governor Tugwell retained Fortas as the legal advisor of Puerto Rico in Washington DC. Laura Kalman, in her biography of Abe Fortas, tells us that:

    “[Abe Fortas] became one of Muñoz‘ most important advisers, and the only one based in the nation‘s capital. Muñoz secretary of state, Roberto Sanchez Vilella, could “[n]ot think of any important question that was discussed in Puerto Rico from 1943 to 1970 that he was not helpful in, he was in the very first line.” Fortas and Muñoz also became personally close. Munoz trusted Fortas “very profoundly”, Inés Muñoz Marín recalled. For Muñoz, seeing Fortas was “like a holiday.” Muñoz‘ attorney general, José Trías Monge, also emphasized that the governor‘s association with Fortas “transcended any professional relationship.” Whenever Fortas went to Puerto Rico, he spent hours in the evenings discussing literature, music, and wine with Muñoz, Trías, and Sánchez. Fortas was more than Muñoz‘ lawyer. He acted as a friend and adviser as well.”

    V. The Scars of Colonialism

    Trías was named First Assistant Attorney General on January 1, 1949. The Attorney General was Vicente Geigel Polanco. As the constitutional processes approached, Trías was elected a delegate at large and his contribution to the Constitutional Convention during 1951-1952 was as expected of such a distinguished constitutional scholar. The new regime of the Commonwealth of Puerto Rico was instituted. The Governor appointed Trías as the Secretary of Justice on January 30, 1952. His incumbency was filled by numerous new legal problems and the judicial cases against the communists, nationalists and other citizens accused of politically incorrect ideological conduct. He remained in the office 4 intense years, from 1953 to 1957. Historian Acosta concludes that this was an era of civil rights violations and injustices:

    “Governor Muñoz Marín himself issued the mass arrest order, because he was troubled that the new inscriptions of electors that were set for November 4-5, (three days after the Blair House attack) could be affected by new acts of violence. The order was initially for the arrest of all members of the Puerto Rican Nationalist Party. To know who they were, the Chief of Police, Salvador T. Roig supplied old lists of nationalists and supposed “subversives” from the times of General Blanton Winship. When they were scrutinized in “La Fortaleza” by Attorney General, Vicente Geigel Polanco, Trías Monge, Jaime Benítez and [Victor] Gutierrez Franqui, confirmed that a number of names of nationalists that appeared in the list had left that party and that people that were never nationalists to begin with were listed. However, the order stood and Special General District Attorney, José C. Aponte, prepared “certificates of summons” supposedly for the nationalists. The way to accomplish the detention was to summon them as witnesses of the events of October 30.”

    According to Geigel Polanco: “The fact is that in the short term of approximately two days, members of the police and the National Guard arrested about a thousand people throughout the Island, using the pretext of the “certificates of summons” to investigate the nationalist revolt.” Geigel Polanco also related to professor Helfeld that he took notice of other excesses committed by the police and the National Guard. Among those were:

    (1) People arrested that were known in the community as affiliated to the Popular Democratic Party and the Independentist Party; of the before mentioned Dr. José Lanausse Rolón, of Ponce; Pedro Matos Matos, of Utuado; Manuel Gualberto Medina, of Vega Alta; and Santos Díaz Berberana of Humacao.

    (2) People arrested that did not figure in the lists supplied by the Police Department. Some mayors provided the police with names of members of the Popular Democratic Party now disaffected of the actual administration, and names of members of the Independentist Party.

    (3) Attorneys arrested that were members of the Nationalists Party, against the express orders of the Department of Justice not to arrest lawyers.

    During 1951 and 1952, some trials were held. Dr. Pedro Albizu Campos, the leader of the Nationalist Party was the first one to whom the Act Number 53, of 1948 applied in court. This criminal trial was celebrated on July 30, 1951 before Rodolfo Ramírez Pabón, the District Judge. The District Attorneys present were José C. Aponte93 and Guillermo Gil Rivera, and the defense Attorneys were the poet and lawyer Francisco Hernández Vargas and Juan Hernández Valle. Dr. Albizu Campos was pronounced guilty and the sentencing judge was Juan Pablo y Toro. Other people like Ruth Reynolds, the university professor and poet Francisco Matos Paoli, the historian José Enamorado Cuesta, Deusdedit Marrero, the nationalist historian Paulino Castro Abolafia, and Carlos Vélez Rieckehoff, were also judged. The trials continued and a jury declared guilty the same lawyers that shared in the defense of Dr. Albizu Campos, Ramón Medina Ramírez, and Jose Rivera Sotomayor. The Correction Division was part of the Department of Justice and Secretary Trías was responsible for the imprisonment of the nationalists and Dr. Albizu Campos. He also dealt with the events of March 1, 1954, when the Nationalists attacked the United States Congress and the pardon of Dr. Albizu Campos was revoked.

    The four years of Secretary Trías at the helm of the Department of Justice ended and he returned to the private practice of law. Although he was not a member of the cabinet, Trías maintained his ties with “La Fortaleza.” The Governor asked for his advice in many initiatives, projects and complex constitutional matters. Especially important were the plans to add more powers to the recently created constitutional arrangement. Dean Efrén Rivera Ramos in his commentary about the last book of Trías, The Trials of the Oldest Colony in the World, asserts that:

    “On regard to the Commonwealth of Puerto Rico, stands out his proposal addressed to his fellow party members, about how what happened between 1950 and 1952 should be understood. The author tells us that he visualized the “Estado Libre Asociado” (the Commonwealth) as another step, just like the Law of the Elected Governor, in the long path toward autonomy, but not necessarily the definitive solution to the problem of the status.”

    Trías, in his Historia Constitucional de Puerto Rico recounted to a great extent his interventions on the status matters, although one must conclude that part of his thoughts were assigned to the Governor, because that is where they originated, or were not consigned. In addition, when in later years he revised his notes and papers, he offered a critical view of those events, enriched by new perspectives. Let us examine one of his conclusions:

    “The Constitutional Convention was the Puerto Rican organism that with most authority and force could face Congress about the doubts of the significance of the basis for the framing of the Constitution. It is considered that if Congress does not concur with the interpretation of the compact that the Convention adopted it would simply ask Congress not to ratify the Constitution, because it did not correspond with the will of the People of Puerto Rico. The most critical decision of the popular party leadership in the Constitutional Convention was to renounce that opportunity. A rapture of caution impeded them a frank and free discussion with the government of the United States that would facilitate the steps to take in order to grant Puerto Rico a true autonomy. It was comparable to the hurdle of all intents to discuss in the hearings of Public Law 600 to perfect the terms of the relation between the United States and Puerto Rico. This decision would cause constant humiliations and anguish in the next decades.”

    Another indication was pointed out in his final reflections that constituted the last chapter of his constitutional history:

    “It has been a degrading process for Puerto Rico and the United States. In a world where colonialism, at least the XIX century version, is finished, Puerto Rico is upheld in an indignant position, nor inside or out, governing itself and being governed, at the margin of international respect, with a supposed right to be what it wants, but thrown to the wall of lament every time that he expresses his will. The scab of colonialism has left its mark in the spirit and history of the People of Puerto Rico. The perpetual state of subjugation has created the most bizarre figures and attitudes. It surged in our history, the unconditional Puerto Rican, an enthusiast servant of the empire, tireless searcher of the metropolis‘ favor. This Puerto Rican wants to forget what he is; he wants to stop being. At the beginning of the century, this type of Puerto Rican flourished in its most crude version. Then he changed a little, or simply masked himself and talked about a sui generis statehood, at his measurement, statehood without assimilation.”

    In 1955, a law to promote the Puerto Rican culture was created by the “Instituto de Cultura Puertorriqueña” an institution to promote and preserve the national Puerto Rican culture. The Governor appointed Trías Monge as a member of the Board of Directors that inaugurated the new agency under the leadership of the first Executive Director, Doctor Ricardo E. Alegría. He stayed four years. In addition, Trías was a member of the Board of Directors of the Festival Casals, his collaboration span from 1957 to 1969 and during 1973-1974. He was also a member of the American Civil Liberties Union. Interested in the university affairs, Trías accepted an invitation of Governor Muñoz Marín to be a member of the Superior Education Council. It was a moment of crisis when the reform of the University of Puerto Rico was discussed in the Legislative Assembly, which took place in the University, by the professors, students and the public opinion. He stayed on from 1962 to 1966 when the new law was approved. Then, the Governor appointed him a member of the novel Council of Higher Education and he contributed in the implementation of the new university system. He served from 1966 to 1972.

    When Chief Justice Trías Monge retired from the Supreme Court, he returned to the private practice of law. The Law School and Dean Antonio García Padilla nominated Trías as Honor Professor of Law as a recognition of his judicial career and legal scholarship. He was a stimulating presence in Campus. Then, with a distinguished group of members of the bar, judges, and professors of law, he founded the Academy of Jurisprudence and Legislation. He served as the first president of that institution. Under his direction, the Academy embarked on an exciting program of reforms to the Puerto Rican law. Trías served a decade as head of the academy.

    VI. A Centenary and a Denounce

    A. Commentaries on the book, Puerto Rico:
    The Trials of the Oldest Colony in the World.

    The book has the importance of being the labor of a jurist that possessed solid knowledge on the status matters. The author takes a major part in all dealings and transactions for the creation and the intents to empower the arrangement known as the Estado Libre Asociado or the Commonwealth of Puerto Rico. He had an inner involvement from the inside of the highest governmental and political circles in San Juan and in Washington. His participation was not that of a politician, or that of an active member of a political party, but that of a man of state and government that had intimate understanding and comprehension of how the actual arrangement of government was conceived. He was one of the theorists who partook in the conception of that arrangement. The book was written by a distinguished member of the intellectual and directive class that was acquainted with the hall of power and politics and was the depository of the trust of the power and gubernatorial elites with an intense practice of corporate, commercial and civil law. Trías, a respected attorney in the United States and in our Island wrote a unique book. The small volume caused and impact to all that studied it because of the significance of the author and the forthright treatment of the material. The readers, common citizens, political groups, and the legal circles, acknowledge with great interest this last book of Trías Monge, Puerto Rico: The Trials of the Oldest Colony in the World. The book is scarcely reviewed but widely cited and read. One of the causes for so much attention rests in a similarity with the tale, The Emperor‟s Cloth, and it is so, because only a small minority or fraction of the “estadolibristas,” the defenders of the Commonwealth regime, admit that the arrangement is colonial. Then came one of the most significant heads, a member of the inner sanctum of the popular establishment, and affirmed with all his prestige and internal knowledge that the status or arrangement they defended was that of a colony, and not just a common one but also the oldest colony in the World. This is different from what Governor Rafael Hernández Colón said, that the “Estado Libre Asociado” or Commonwealth had a democratic deficit. Obviously, an euphemism, Trías was categorical. The Trías book, coming from his impeccable intellectual credential and constitutional knowledge, created a contradiction and obligated them to face the ugly colonial reality. Also, compelled them to change in their positions and interpretations. It must be remembered that in our legal scholarship other jurists contributed with fine studies and articles. One of them is the wellresearched and highly critical book La Farsa del Estado Libre Asociado. The author was the scholarly and cultured attorney Vicente Geigel Polanco, a former parliamentary leader of the majority of the Popular Democratic Party in the Senate, (1940-1948). In addition, he served as the first Attorney General in Governor Luis Muñoz Marín‘s cabinet, (1948-1951). Although it demolished the constitutional scheme as a finely and artfully disguised colonial arrangement, this book of Geigel Polanco for personal, political and circumstantial reasons, has not the impact of Trías‘. Its publication was too contemporary to the events of the biennium of 1950-1952 and the author was a Popular Democratic Party outcast. We must bear in mind that after those constitutional events, the promoters were exultant and jubilant; they thought that a new era was coming and colonialism was over.

    In the world of learning and constitutional scholarship, other contributions were published like the law review articles and monographs of Dean David M. Helfeld. They are not only well researched, as usual from that constitutional scholar, and well written, but they were done with a tone of sobriety and also admonished and called for cautious reality, and forecasted consequences fifty years in the future. Dean Helfeld affirmed that: remaining were traces of old imperial attitudes. The sophistries and political rhetoric impeded the understanding of the critics of the before mentioned legal scholar. In another important monograph, he stated that, “Though the formal title has been changed, in constitutional theory Puerto Rico remains a territory. This means that Congress continues to possess plenary but unexercised authority, over Puerto Rico.” Then Helfeld held that, “In local affairs, the Puerto Rican government exercises de facto authority comparable to a state of the Union.” In addition, he concluded that: “In Constitutional theory, Congress continues to possess plenary authority over Puerto Rico which, in status, if not in title, remains a territory.” Dean David M. Helfeld with perspicacity predicted in 1952 the actual occurrence fifty years later when he affirmed that:

    “The existing federal-insular relationship has within it the seeds of two tensions; one is symbolic, while the second involves government without representation. With time, the tensions between political reality and constitutional theory, between the possession of home rule and the status of a territory, may grow to unmanageable proportions. Part of the reality of freedom is being free. Indeed, man‘s history chronicles innumerable occasions when the symbol of freedom outweighed all practical considerations. Since men live by and for symbols, a substantial degree of self-determination may not compensate for a badge of an inferior status. Nor is the badge merely symbolic, since Puerto Rico is permitted no politically effective role in the making of national policy -even with respect to federal policy which affects the island deeply and directly. A people with democratic convictions can hardly countenance government without representation at the national level as a permanent political condition.”

    The ambitions of many lawyers, professors and scholars seeking positions in academia or government, are another reason for the scarce number of academic commentaries or re-views. They also not elaborate publicly on the contents of Trías‘ book. In addition, they elude the constitutional controversy for personal ambitions. In this form, with scarce exceptions, as usual in our society, a national defect, the public commentary was limited, for not saying that only a few references to the book were published. Although as said before, Trías‘ book is well known and used. To put this in perspective it is proper to cite the words of the literary critic Carmen Dolores Hernández. She said in a review in the newspaper, El Nuevo Día, in reference to Pedro Albizu Campos, that he was:

    “Exigent, devoted and always talking undoubtedly in a country that is known for the people‘s ability for dissimulation, deceitfulness, double speaking and „la brega.‟ In this sense, Albizu was out of rank: he was no diplomatic like the politicians, not skillful like the intellectuals. He appealed to the fulfillment of a patriotic fundamental duty and to the innate resistance that humankind has against the abuses of the weak by the powerful.”

    That is the cause why so few reviews are published; Trías speaks unambiguously and clearly about the status problem. The title of the book is a manifest in itself. As half of a century has passed since the constitutional events of 1950-1952 the times had matured, and were not for palliatives. The author in his last years and in the centenary of the military invasion served well his country by unveiling the truth.

    1. The presentation by professors Efrén Rivera Ramos and Owen M. Fiss.

    The presentation of Trías Monge‘s new book about the colonial condition of Puerto Rico was made in the Aula Magna of Law School of the University of Puerto Rico on March 5, 1898. Dean Antonio García Padilla opened the act and Professor Owen M. Fiss of Yale Law School spoke:

    “An even more remarkable feature of the book is Trías‘ use of the rhetoric of colonialism. The practice of referring to Puerto Rico as “territory,” which always struck me as an exercise in sugarcoating, is dropped, and in its place, we find the full acknowledgment of Puerto Rico‘s colonial status. Throughout the book, subtitled The Trials of the Oldest Colony in the World, Trías calls for the decolonization of his native land. The status quo is a colonial arrangement, he argues, as far as federal law governs Puerto Rico, because its people are denied the right to vote for the President of the United States and they lack full voting representation in Congress.”

    “At one point, Trías, always the man of good will, pulls back and says, ‘The term colony is not employed here in the usual vituperative sense, applied in the past to the dependencies of the European imperial nations.‘ What he means by that disclaimer is simply, that economic exploitation of Puerto Rico was not the aim of the United States. This much might be conceded economic exploitation is only one among several possible motives for colonialism and is not constitutive of that relationship. Indeed, it has not played much of a role in shaping the United State‘s policy toward Puerto Rico. Still, one cannot, and should not, deny the moral edge and essentially condemnatory quality of the term “colony,” even in the hands of so gentle a soul as Jose Trías Monge.”

    “Colonialism involves the governance of one people by another and derives its moral force -all-negative- from the fact that this governing arrangement violates the principle of self-determination. In the 19th century, this principle was given powerful expression in Latin America, and it has become one of the cornerstones of global politics in the 20th century. In my lifetime, it provided the ideological foundation for the transfiguration of Southeast Asia, the liberation of Africa, the dismemberment of the Soviet empire and the emergence of a host of independent nations from its remains. Self-determination is an idea which time has really come.”

    “The rhetoric of colonialism not only condemns the status quo, but it has powerful implications for how the present arrangement might be reformed. It creates an important place for Puerto Rico in deciding what the status of Puerto Rico shall be, and thus it makes a plebiscite or some other means of ascertaining Puerto Rican sentiment a moral requirement. On this issue, there is no dispute. However, the principle of self-determination also provides the standard for judging the arrangement that is chosen and would remain unrealized if the people of Puerto Rico chose a status in which they were to be governed by another. As Trías succinctly puts it, ‘a slave‘s consent to bondage does not make him a free man‘.”

    “A similar point can of course be made about the cultural consequences of colonialism, particularly the threat many perceive today to the Spanish language. The prevalence of English in Puerto Rico does not derive from the colonial relationship, which is essentially governmental in nature, but rather from the power of the United States across a wide variety of domains, including the economic, scientific, and artistic. As evidence of this power, note, that all major business negotiations in Europe are conducted in English. English is the language of the European scientists. Most of the television and movies Europeans watch are made in America. In the mind of some, statehood may create an additional pressure to use English in government transactions, but the real basis for the increasing dominance of English, equally prevalent in whatever form decolonization takes, derives from the practical, rather than the formal, allocation of power in the world. In 1998, there is only one super-power, and it is the United States.”

    “Some have decried the domination of the United States in the world marketplace and the cultural sphere as a form of ‘neocolonialism.‘ Neo-colonialism is, however, a very different institution than colonialism, and in my view, nothing is gained by eliding the two. Arguably, both forms of colonialism may pose a threat to self-determination, broadly and generously understood, but a crucial difference arises from the nature of the threat to the ideal: one is governmental, the other pragmatic. On a purely moral plane, a difference in the nature of the threat may make no difference -a denial of self-determination is a denial of self-determination- but at the very least, the remedies will be extraordinarily different. How does one possibly end neocolonialism?”

    “Again, none of this meant to blunt Trías‘ essential point or to lessen the moral appeal of his argument, but only to place it in proper perspective. We should do the right thing simply because it is the right thing. We should end the colonial relationship because it is a denial of the principle of self-determination and thus is wrongful. However, we should not assume that this course of action, essentially moral in nature, would solve the practical problems that have their roots in sources other than colonialism.”

    Professor Efrén Rivera Ramos read his review. He said that, “It is my opinion that this book is the sharpest description Trías has made of our status of subordination.” Professor Rivera Ramos continued with his critic of the book:

    “In first place, Trías recognizes the colonial character of our relationship with the United States. In the penultimate chapter, he gives twelve reasons to arrive to that conclusion. The author arguments that this acknowledgment is the first necessary step in a serious effort to reconstruct the relationship. He finishes saying that those in the United States and Puerto Rico who still hold to the ‘strange notion‘ that Puerto Rico self governs itself, are simply out of tune with the informed world. This categorical judgment is most important because it was made by one of the architects of the status formula known as the Commonwealth of Puerto Rico. Concerning the Commonwealth, he emphasizes his proposal directed to his political fellow party believers of how to interpret what happened during 1950 and 1952. The author tells us that he visualized the ELA as a step, just like the elected governor law, in the long way to the autonomy, but not necessarily the definitive solution to the problem of the status. In that direction Trías‘ thesis makes me remember other Puerto Rican writers, some of them placed in different ideological perspectives about the meaning of the events of the fifty‘s. As an example, I heard Dr. Pedro Juan Rua, professor of the University of Puerto Rico say that in his appreciation, the colony is Puerto Rico and the ELA (Commonwealth) is the instrument that a generation forged to defend itself from the colony. This idea recognizes the ELA and its character of resistance, but it also supposes the existence of the colony. The distinguished writer José Luis González expressed a similar notion in other terms. Juan Manuel García Passalacqua, who thinks that the decolonization of our country is not completed, has said that the Constitution of 1952 ‘was converted by the masses in a foundational document of their nationality.‘ And recently, in an interesting book, “La Identidad Ausente”, the intellectual, of socialist and Independentist orientation, also a university professor, Dr. Hector Meléndez, affirmed of the ELA ‘that at the same time it was an instrument of power and ideology, it was also a democratic conquest: it is the farthest that the collective willpower has gotten to forge the national State.‘ What these appreciations have in common is their rejection of the two antagonistic positions very common in the Puerto Rican political discourse of the second half of this century. One is that nothing of importance happened in 1952, and the other, sustains that at the time happened all that was and had to be. Sectors of the different political directions continue to adhere to these two positions. The position of Trías, and those others mentioned, is that in this historical moment something significant happened, but certainly not the decolonization of the country. In addition, all the mentioned authors share a criterion on which the majority of the people of this land concur: the conviction of the existence of the Puerto Rican nationality, a fact that we see in the legislative debate about the Young Bill that some sectors that are supposed to intervene in the decolonization process continued to deny.”

    “On the decolonization, Dr. Trías Monge thinks that the United States must assume, at the earliest, the responsibility that corresponds to them in this matter, without the excuse for their inaction, that the Puerto Ricans are divided in the solution of the problem of the ‘status. The metropolis has the obligation, to act affirmatively to accelerate the decolonization process. At the end, they create the problem. It must be distinguished between the decision to decolonize, that it has to be taken now, and the precise ways of decolonization, that might take more time in their implantation. I think that many coincide with his statement.”

    2. The Review of Luis Martínez-Fernández

    Luis Martínez-Fernández published a short review of Trías‘ book in The Journal of American History in which he expressed that:

    “In his book Puerto Rico, the former Supreme Court chief justice and distinguished constitutional scholar, José Trías Monge, undertakes the task of exposing the roots and current problems of Puerto Rico‘s long-standing colonial dilemma and presenting alternatives for its solution. Trías Monge accomplishes this in an honest and balanced manner, which sharply contrasts with the vitriolic and partisan -not to mention distorting- way, characterizing most discussions about the island‘s status. Although long associated with the pro-commonwealth-status Popular Democratic Party, the author succeeds in keeping his autonomist views from interfering with the task: documenting the trajectory of the constitutional relations between Puerto Rico and the United States, and outlining the possible paths towards the resolution of the island‘s po-litical status problem.”

    “Trías Monge convincingly demonstrates that Puerto Rico has endured one century of colonial domination under the United States, benign, as it may have been. He traces this experience in chapters 2 through 11 by looking at the various stages in the evolving relation between Puerto Rico and the United States. These chapters constitute the bulk of the book, and, although there is little new information or interpretation in them, they provide a necessary background to the current dilemma and its possible settlement.”

    “It is in the last two chapters, “Clearing the Way for a Second Look”, and “Possible Paths for Decolonization,” where Trías Monge makes his case that Puerto Rico is still a colony, and that the current stalemate about its status is the fault of both the United States, and the island‘s politicians. He recognizes the current political fragmentation of the island as an obstacle to decolonization, but he argues that disagreement -even polarization- should not interfere with the process and advises United States policy makers not to use that as an excuse to remain passive vis-à-vis Puerto Rico‘s status problem. The author makes a forceful call for the United States to make clear which status options would be open to the people of Puerto Rico and what would be the consequences of each option.”

    3. The review of Christina Duffy Burnett

    Christina Duffy Burnett published an interesting review in the Yale Journal of International Law. She started by asking herself some questions: How do you prepare a review of a book of a colony called Puerto Rico for a Review of International Law? Is not Puerto Rico a self-governing Commonwealth? Then, she asked, “Were you going to shelve this book in a library? In the section of International Law, or in the section of History of the United States?” Therefore, Duffy Burnett manifested that:

    “Perhaps the bookstore has a section on ‘not really foreign‘ countries or ‘more-or-less domestic‘ territories. Try using other phrases that have described Puerto Rico over the past century to refine your search: “Possession. ‘A sort of an autonomous dependency‘.” “Unique.” You may have to go to the information desk.”

    “The subtitle of José Trías Monge‘s book is on the mark; the term “colony” most accurately describes Puerto Rico. For one hundred years, the island has been an “unincorporated territory,” which means that the United States has no intention of making it a state anytime soon, if ever. It is subjected to the plenary power of Congress under the Territorial Clause of the U. S. Constitution. Residents of Puerto Rico have been U. S. citizens since 1917, but they have been denied representation in Congress except for a nonvoting Resident Commissioner, and they may not vote in presidential elections. Recently, the Eleventh Circuit held that consecutive trials in the local courts of Puerto Rico and the federal courts in Florida violate the prohibition against double jeopardy, because Puerto Rico‘s power to punish does not emanate from a separate sovereign.”

    “It may come as a surprise, then, to discover that Trías Monge‘s use of the term “colony” has caused uproar in Puerto Rico. This is not because nobody there believes the term applies to the island -many have for a long time, and still do- but rather, because Trías Monge was among the architects of the Commonwealth status his book maligns. The Commonwealth Party leadership has long denied that this status is colonial. Many Puerto Ricans, through their support of the party, have agreed. If, then, Trías Monge thinks the Commonwealth of Puerto Rico is a colony, why did he participate in its creation? If this status obviously has colonial attributes, why do so many Puerto Ricans support it? More importantly, if so many Puerto Ricans seem not to mind these colonial attributes, then why should it matter now, half a century later, if Puerto Rico is indeed a ‘colony‘?”

    “The most important achievement of the book is its challenge to the idea that Puerto Rico‘s ambiguous status poses no problem because its people have democratically chosen this status, in the exercise of their right to self-determination. As a major participant in the events that led to the creation of the Commonwealth status, Trías Monge is in an excellent position to explain why, after a convention establishing the Constitution of the Commonwealth of Puerto Rico, a vote of 76.5% approving Commonwealth status, and its victory in two subsequent plebiscites, Puerto Rico is still a colony, and status is still a problem.”

    “The problem is this: The people of Puerto Rico approved Commonwealth status in 1952 under what appears to have been the widespread misunderstanding that it was merely a transitional status and that it represented a partial grant of sovereignty by Congress to Puerto Rico. Congress has consistently stalled subsequent attempts by Puerto Rican political leaders and delegates in Washington to “enhance” this status. The people of Puerto Rico chose not Commonwealth, but “enhanced” Commonwealth, in a 1967 plebiscite; Congress failed to grant the requested enhancements. The people chose “enhanced” Commonwealth again in 1993, this time with a fortynine percent vote; once more, these enhancements were rejected (although this time, with statements far less ambiguous than Trías Monge acknowledges). Thus, as the author confirms, the people of Puerto Rico have not democratically chosen their status. Instead, they have asked Congress for a status different from the current one ever since the very year they achieved it. As Trías Monge puts it: «So much for self-determination. »”

    “Luis Muñoz Marín stood before Congress in 1952, prior to the adoption of the Commonwealth Constitution, and argued forcefully that the new ‘Commonwealth‘ status would not perpetuate inequality, as it would be ‘unthinkable that a free people, a people worthy of American citizenship, should go to the polls and vote for a status that they conceive as one of inequality‘. As Trías Monge tells it: ‘The gnawing feeling that these words were not fully heeded in the course of establishing the Commonwealth of Puerto Rico, that the resulting relationship still had not been adequately purged of all of its colonial connotations, clearly impelled Muñoz Marín to dedicate the rest of his years to efforts to add to the powers of the Puerto Rican people within a framework of association with the United Sates‘.”

    “That gnawing feeling must have come from Muñoz Marin‘s recognition, deep down, that such a nimble sleight of hand would never slip Commonwealth status past constitutional objections. Using that sleight of hand to slip this status past a people worthy of American citizenship proved easier; ironically, it undermined that very citizenship. Trías Monge‘s nimble pen may have moved lightly over U. S. constitutional jurisprudence, but this should not diminish the accomplishment of his important, insightful, and engaging book. Heeding his call for civility, we must now embark on a dialogue worthy of American citizens.”

    4. The review of Juan R. Torruella

    Chief Judge of the United States Courts of Appeal for the First Circuit, the honorable Juan R. Torruella published a long review of Trías Monge‘s book in the Yale Law Journal, titled in Spanish, ¿Hacia dónde vas Puerto Rico? A fragment of a poem of the national poet Juan Antonio Corretjer preceded this interesting commentary.

    ¿Dónde estás mi corazón
    que ya ni latir te siento?
    Juan Antonio Corretjer
    Tierra de mi Corazón

    “As we face the 100th anniversary of the American annexation of Puerto Rico, the predominant issue that has been endlessly debated for a century by the local political leadership -the so called ‘status question‘- has gained new political life on the mainland. Bills have been introduced in Congress to resolve the status conundrum. Under the Young Bill, a congressionally sponsored referendum would have been held in which the voters of Puerto Rico would have chosen between three status alternatives: some form of commonwealth status (yet to be defined), independence, and statehood. It is in this context that José Trías Monge wrote his political history and blueprint for the Island, Puerto Rico: The Trials of the Oldest Colony in the World.”

    This is a remarkable book that was written by the former chief justice of the Supreme Court of Puerto Rico, who is not only a noted constitutional scholar, but most significantly was a major actor in the creation of that presently malign entity, the ‘Commonwealth of Puerto Rico.‘ Much of the book is a comprehensive review of relevant Puerto Rican history, and thus it is valuable, at the very least, as a concise reference source for those who may otherwise be unfamiliar with the subject. The book‘s principal worth, however, lies elsewhere, and may be somewhat difficult to appreciate for those who are uninitiated in the Byzantine politics of Puerto Rico.”

    “For some time, however, there have been precursory indications of fissures on this initially monolithic pro-Commonwealth posture. A clear forecast of Trías Monge‘s stance regarding Puerto Rico‘s colonial status was provided as far back as 1983, when he stated in his seminal work, Historia Constitucional de Puerto Rico: ‘Puerto Ricans can be counted as having one of the longest colonial histories among modern people. This is a sad distinction.‘ Nevertheless, the unequivocal posture that Trías Monge expressed towards the Commonwealth‘s colonial status in Puerto Rico: The Trials of the Oldest Colony in the World is nothing short of startling. Trías Monge, after all, was one of the principal architects of the Commonwealth as well as an active participant in its endeavors during much of the political entity‘s golden years. His present stance thus, negates a considerable part of his life‘s work, and this may explain why in the later part of the book he attempted to salvage the ‘Commonwealth‘ status with proposals of doubtful constitutional validity. Most of the proposals Trías Monge offered, in any case, had already been rejected sub silentio by Congress, which by its dedicated inaction is a major culprit in the sorry state of Puerto Rico-United States affairs. The bottom line is that Congress has thus far been reluctant to give up its plenary powers over Puerto Rico.”

    “This book broke with Trías Monge‘s past practice in an additional significant way: It is written in English. Although this may appear to be a point of little significance, I believe it is a subtle but nevertheless an important change related to Trías Monge‘s motivations. His writings up to that moment had been almost exclusively in Spanish, presumably because his principal intended audience was in Puerto Rico. The message reflected in his book, however, would be largely wasted if directed at such an insular audience, and thus Trías Monge switched to the language of those with the real power over Puerto Rico‘s destiny. Probably not coincidentally, the book‘s publication came as Congress considered passage of the most farreaching status-related legislation in recent history, the Young Bill.”

    “Trías Monge‘s book is unquestionably a valuable contribution to understanding the entire Puerto Rican political quandary. It presented, however, a somewhat sanitized view of the events. Indeed, Trías Monge provided examples of historical revisions by omission. In particular, Trías Monge failed to clarify what Congress intended in passing Public Law 600. He also remained silent regarding the events surrounding the decision in Mora v. Torres and the subsequent representations that U. S. officials made to the United Nations based on that case. Both matters have great significance, but Trías Monge seems to gloss over them.”

    “Congressional intent in passing Public Law 600 is crucial to determining the present constitutional status of Puerto Rico as well as the power of Congress, both present and future, over Puerto Rico‘s political status. Overwhelming evidence indicates that before, during, and after the approval of Public Law 600, Congress did not intend to change the fundamental status of Puerto Rico from that of an unincorporated territory or to relinquish its plenary authority. During the hearings before the enactment of Public Law 600, Governor Luis Muñoz Marín and Resident Commissioner Antonio Fernós Isern unequivocally conceded that Congress‘ unilateral power over Puerto Rico would remain unchanged even after passing this legislation. Both the Secretary of the Interior and the Chief Justice of Puerto Rico, Cecil Snyder, testified that the ‘legal relationship between Puerto Rico and the United States remains intact.‘ Senate Report No. 1779, which accompanied the Senate bill (S. 3336), indicated: ‘The measure would not change Puerto Rico‘s fundamental political, social and economic relationship to the United States.‘ House Report No. 2275, which accompanied the House version (H. R. 7644), repeated in detail the Senate‘s reported position that the measure would not change Puerto Rico‘s fundamental relationship to the United States. Moreover, the constitution to be created by the Puerto Rican people required Congressional approval and subsequently was unilaterally amended by Congress, a situation that Trías Monge politely described as ‘having a dampening effect on efforts to break new ground.‘ Based on this evidence, it is difficult to conclude that Public Law 600 created a bilateral pact or changed the status of Puerto Rico as an unincorporated territory under Congress‘ plenary power.”

    “The Mora case concerned a shipment of rice from California to Puerto Rico. When the shipment arrived at the island, the Puerto Rican government subjected it to a price control order. The importer sought to enjoin enforcement of the order, claiming that it violated the Fifth and Fourteenth Amendments as well as the Interstate Commerce Clause. The case was tried before Benjamín Ortiz, an associate justice of the Supreme Court of Puerto Rico, who had been appointed acting district court judge for the United States District Court of Puerto Rico while the regular district court judge was on leave, a procedure that was permissible at the time pursuant to a special provision applicable to what was then an Article I territorial court.”

    “Justice Ortiz served on the House of Representatives of the Puerto Rico Legislature from 1945 to 1952 on behalf of the Popular Democratic Party. In 1951, he served with Trías Monge as a member of the constitutional convention created pursuant to Public Law 600. He was appointed to the Supreme Court of Puerto Rico by Governor Muñoz Marín in 1952 and resigned from the court in 1954, returning in 1961 to the Legislature, where he was vice speaker from 1963 to 1964, again for the Popular Democratic Party.”

    “Eight of the thirteen pages of the MORA opinion deal with the ‘compact‘ allegedly created by Public Law 600, a question which resolution was not necessary to a decision of the issue before that court. Furthermore, although Justice Ortiz found that there were ‘surprising[ly] …few references to the subject by ‘Congress relative to the existence of a compact,‘ this irrefutable conclusion did not stop him from holding that Congress had ‘grant[ed] its plenary powers] away through a compact with the people of Puerto Rico.‘ Within two weeks of the opinion‘s publication on June 19, 1953, Trías Monge, together with Resident Commissioner Antonio Fernós Isern, met with Benjamin Gehrig of the Department of Interior. On the basis of Mora, they were able to convince Gehrig that the ‘compact‘ argument should be used by the United States delegation in support of its position before the United Nations that there was no longer a need to file reports on Puerto Rico.”

    “Considering Trías Monge‘s participation in the ‘creation‘ of the ‘commonwealth‘ status and its aftermath, including the MORA episode and the resulting representations before the United Nations, his open confession that not all of these endeavors changed Puerto Rico‘s colonial condition constitutes a reason for puzzlement and admiration. At a minimum, Trías Monge‘s revelation was an act of intellectual bravery. The bravery of Trías Monge‘s history aside, the solutions the book offers to the cutting of Puerto Rico‘s Gordian knot are disquieting. With an eye on influencing the committees set to hear the Young Bill, Trías Monge shifted gears in the later chapters to argue in favor of what, in Puerto Rican political parlance, is commonly referred to as ‘enhanced‘ or ‘culminated‘ commonwealth status. Under enhanced commonwealth status, a bilaterally binding compact would be negotiated between the United Sates and Puerto Rico, the terms of which would probably include continued United States citizenship for residents of Puerto Rico, a common defense and currency, and inclusion of the island within the United States‘ custom unions. Additionally, Puerto Rico would have the right to veto the application to itself of laws passed by Congress, would have separate representation in various international entities, the right to negotiate commercial treaties separate from the United States, and would have control over immigration into Puerto Rico.”

    “Puerto Rico has been left to be held and governed indefinitely by an unrepresentative group of political actors in Washington, D. C. Although the United States is a relatively benign colonial power, it is nevertheless at the controlling end of a political equation in which 3.7 million citizens of the United States have no substantial say regarding the truly fundamental issues that control their daily lives. Although there has been local self-government since 1952, such limited, parochial self-government activities merely serve to distract the populace from more fundamental goals. For example, that Puerto Rico has a ‘representative‘ in Congress without a vote is not only a pathetic parody of democracy within the halls of that most democratic institution, but also a poignant reminder that Puerto Rico is even more of a colony now than it was under Spain. At various times during Spain‘s regime the island had full voting rights and representation in the Spanish parliament.”

    “As Trías Monge pointed out, there are various paths to follow, that Congress may opt for. At this stage, we do not know the full extent to which these paths may fit the constitutional scheme of the United States, or whether they are politically acceptable to Congress. Nevertheless, one thing is clear; after one hundred years of sometimes-beneficial American colonialism, it is best for all concerned to break the present logjam at the earliest possible moment. Too much time and energy continue to be wasted on the perpetual recurrence of status uncertainty; once this central question is resolved, we can turn our attention to the business that is truly called “the business of self-government.”

    “One need not agree with Trías Monge on all points to recognize the genuine contribution that his book makes. Most importantly, it may serve the noble purpose of bringing to the attention of the American people the plight of their fellow citizens in Puerto Rico.”

    5. The review of Walter W. Stafford

    The professor of public administration and planification of New York University, Walter W. Stafford, reviewed Trías‘ book as part of an essay in bibliography about people of color. In it he comments about internal racial problems in the United States and included a Latin American nation, Puerto Rico, a colonial territory of the United States. The professor mixed colonialism as practiced by the United States in a Caribbean country with the serious discrimination as practiced in the States against Afro-Americans, Native Americans and others. Stafford did not get that the Puerto Rican colonial problem is an international question, that of a distinct country that was invaded in the Spanish-American War of 1898 and ceded by Spain in the Treaty of Paris of 1898. Although the Supreme Court of the United States in one of the Insular Cases proc-laimed and decided that Puerto Rico was “foreign in a domestic sense”, that high judicial court did not posses powers to change geography, history and nature. I will repeat it again: Puerto Rico is a Latin American nation, historically, sociologically and linguistically. Our Island has a natural language, the Castilian and an acute nationality and national culture, of which it is proud. We, the Puerto Ricans, are not a group of American citizens living in the Caribbean, no, we are a country and the colonial dependency that we suffer is not a question of civil rights, but a problem of decolonization and search of sovereign rights and liberty. The same Supreme Court of the United States that decided the Insular Cases also decided the Dread Scott Case and Plessy v. Ferguson, justifying a crude criminal discrimination against the Afro Americans. In his book, Puerto Rico: The Trials of the oldest colony in the world, Doctor José Trías Monge mentioned that:

    “It is rarely mentioned that the Fuller Court, famous for its mistakes, decided the so-called Insular Cases. The Fuller Court was the one who blessed… the racial discrimination; the one that justified the use of injunctions against labor unions and the incarceration of their leaders; the one that condemned us to an eight hours‘ day of work, and the one that used the due process clause to annul other laws of social justice. Downes [Downes v. Bidwell] is the other face of Plessy. What the Court said is that racial discrimination was valid between people under the Constitution of the United States and valid between countries. According to Downes, that Constitution permits the regulation of free people and the subjugation of others in the country in which it rules. The validity in our days of that modality of slavery and that interpretation of the United States Constitution is degrading and questionable.”

    Professor Stafford in his Review Essay entitled Bringing Historically Marginalized Groups of Color into the Study of Administrative State, states that the book of Trías is:

    “In his most recent book, venerable black historian John Hope Franklin (1993), who chaired President Clinton‘s Race Initiative, made a dismal proclamation about the future of race relations in the United States: “Franklin indicated that the fully expected W. E. DuBois‘ prophecy that the color line would be the major problem of the 20th century would extend into the 21st century. This conclusion, he noted, arose from the fact that by any standard of measurement or evaluation, the problem had not been solved in the twentieth century, and consequently, it became a part of the legacy and burden of the next century. Franklin‘s assessment needs to be tempered only to add to the prophecy that the color line would be joined by cultural tensions, or what Samuel Huntington (1996) calls civilizational conflicts in shaping relationships among groups, nations, and states.”

    “Globally and domestically, one of the major challenges of the next century is to reconceptualize the relationships of the dominant states and groups, who have shared the wealth of the twentieth century, with peoples of color, who by almost any standards have endured long and continuous suffering. The new conceptual landscape is largely uncharted. According to the Club of Rome, we have barely begun to explore the forms of the state, government, civil society, and capital needed to meet the needs of post-colonial groups and nations, which are the fastest growing populations globally and are expected to dominate the larger U. S. cities and some of its states (King and Schneider, 1991). As postcolonial groups infuse the politics of the United States, it is almost certain that policymakers will have to review current approaches to economic and cultural human rights, dual citizenship, community development, affirmative action, diversity planning, government contracting, the future of colonial territories and Native American nations.”

    “As Anthony Marx documents in Making Race and Nation: A Comparison of the United States, South Africa, and Brazil (1998), state actions have been highly consequential in shaping the template of modern race relations. The American administrative state that evolved after Reconstruction encoded the pervasive racial discrimination of white civil society, ultimately shaping the lives of Native Americans, blacks, Puerto Ricans, Mexicans, Philippines, Japanese, and Hawaiians. Although the public service professions are justifiably proud of their Progressive heritage, it is well to remember that the early years of the movement paralleled what Rayford Logan (1954) called the nadir of race relations in the United States.”

    “Puerto Rico: The Trials of the Oldest Colony in the World. The long and often bitter struggle of Puerto Ricans with U. S. agencies has been minimized in the story of United States race relations and pluralism. Despite the efforts of Puerto Rican and Latin scholars and analysts, the story of the colony remains a footnote in most historical and contemporary discussions about racial and cultural change. Ignoring Puerto Rico‘s history and its contemporary plight, however, is a mistake. Its relationship with the United States is important, especially for students of the administrative state who wish to understand how U. S. agencies managed colonial territories.”

    “President Wilson, who segregated blacks in federal government, did not believe that Puerto Rico was suited for territorial government. Although he was the architect of self-determination, Wilson did not extend the policy to Puerto Rico. In 1917, under the Jones Act, Puerto Ricans became citizens. During the debate on the bill, Senate participation was sparse, and one Southern senator opposed citizenship because of the menace of mongrelization. The Jones Act represented a modest step toward self-government. The island was permitted to have an elective Senate but it was subjected to strong safeguards by the United States. Economically, Puerto Rico had turned into little more than a plantation.”

    “The 1930s, Trías Monge notes, were seminal in Puerto Rican history. Economic conditions worsened, and colonial policy became more rigid. However, local politicians and activists‘ protests against the conditions became louder, and in 1934, the Resident Commissioner filed the first statehood bill. Of equal note is the violence and repression of this period. Uprisings by Puerto Ricans, led by the Nationalist Party, resulted in 19 deaths in the Ponce massacre. Even with this turbulence and the complete failure of the assimilation policy, Congress took little action concerning Puerto Rico‘s status.”

    “In 1950, Puerto Rico got the right to adopt its own constitution and to establish a relationship with the United States ‘in the nature of a ‘compact.‘ The Commonwealth was established under its own constitution in 1952. By then, Trías Monge notes, the bureaucratic obsession with holding full power over Puerto Rico in the European imperialist fashion made no sense, and the Americanization policy ceased to be a goal. However, Puerto Ricans were far from happy with their status, and in 1953, at Puerto Rico‘s request, the United Nations held proceedings on decolonization. At best, this effort resulted in a stalemate, as Puerto Rican legislators did not want to embarrass the United States, and the United States obfuscated its responses to the United Nations. Trías Monge provided an important chapter on Puerto Rico and the United Nations that should be read by students interested in human rights.”

    “In the 1960s, the United States‘ relationship with Puerto Rico was determined by the work of a commission appointed by Congress to decide on a new compact. Trías Monge titled the chapter ‘The Big Sleep.‘ The commission recommended that a plebiscite be held, and in 1967, Puerto Rico overwhelmingly voted for commonwealth status, a factor shaped by the fact that the Independence party boycotted the plebiscite. Congress did not pay any attention to the expression of popular will and, virtually, nothing hap-pened in the relationship until the 1990‘s.”

    B. Trías denounces the centenary of 1898-1998

    In the emblematic year of 1998, the centenary of the invasion of Puerto Rico by the United States army and navy, José Trías Monge subscribed a column published in Diálogo, the University of Puerto Rico‘s newspaper. Its title was Un centenario y una denuncia. He returned to the subject of dependence and colonial subjection. He knew that time was running out; he wanted to educate with his orientation, to help his fellow countrypersons in the search for decolonization and liberty. He wanted to stimulate. Trías manifested that:

    “In this centenary of the United States‘ invasion of Puerto Rico, ¿what is to be told of the situation of this country, so offended by others, and so scarcely defended by many of its own sons. This centenary is not a motive of celebration by free men and women, but of meticulous reflection about what has taken us to this pitiful condition. Armed aggressions are not celebrated. The acquisition and the maintenance of colonies are not celebrated. Injustice is not commemorated. For still conserving Puerto Rico in a state of open subjection, this is a year of affliction.”

    “In what possible norm of reason are the reclaim of sovereignty over Puerto Rico and the supposed plenary legislative power over this country without its express consent based on? In the poignant Treaty of Paris, that is of no value today, if it was even worth the paper in which it was written? In that it is so ordered, in the uncanny judgment of some, in the territorial clause of the American constitution. In this Puerto Rico of our sins, we spend our lives on inconsequential legalisms, in scholastic cuasi-legal political discussions, discussing the shadows inside the Plato cave. Let us get out of that cave to see what is not being foreseen there. At last, let us apprehend that all interpretation of some part of that constitution, or any document that contains a sovereign reclaim, or to justify the exercise of power over Puerto Rico, without its free and express consent lacks reason and binding character. The colonial legality only obliges those who are comfortable with injustice. The free Puerto Rican, like any other human being, is not condemned to blind obedience. That is the plinth of freedom, the one that exists although it is tried to be denied it or is not exercised for unconsciousness of it.”

    “The use of the term “colony”, which I have employed publicly since more than three decades, without political charge or any desire to denigrate any status formula or exalt others, causes surprise, anger and sometimes rage in the United States. “The United States has no colonies”, is a phrase usually uttered by politicians and by the United States government before the United Nations. On the other hand, high officials of that government, affirm without blushing that Puerto Rico is subjected to the plenary powers of Congress.”

    “The sluggishness of the United States in recognizing Puerto Rico its rights has affected our attitudes and world vision. The prolonged colonialism, sometimes, produces the habit of servitude. We are acquainted with the absence of liberty. We even applaud and celebrate those who deprive us of liberty. We are transforming into obsequious, mellow people, prisoners of the fear of offending those who wrong us. We resign ourselves to thinking that freedom and the dignity of feeling equal to any other country or person in the world, will only happen when God wants it to.”

    “Another consequence of the centenarian colonialism is the manner in which the public opinion is divided in a servile society hindering its capacity to produce the necessary consensus to confront the domineer. Sixty-three years ago, Antonio S. Pedreira termed our primary ill as insularism. In my judgment, the malady that consumes us is not insularism but that there is no solidarity. The lack of solidarity difficult our capacity to define our purpose as people and to join forces to attain it. We suffer from tribalism, disunion and have forgotten the need to demand our rights in a loud and strong voice. That is what colonialism does to the people: it disintegrates them, tames them, impoverishes their spirit, converting them in mere twaddle. “

    “This is not only a year of protest for the condition in which the United States has maintained us, but the admission of our fault in not reacting as dignity and reason demanded. Here we are gesticulating pathetically in this stretch world of calculation and ambush we have made, more occupied with injuring and hurting each other than confronting as one the people who injure us. We find content in fantasies and places such as plebiscites that do not bind and plead.”

    “Let us revise our values. I think that we do not understand well the meaning and the power of freedom. With admitted good intentions of not reducing the sense of self- esteem of the People of Puerto Rico, so necessary for its struggles, or to minimize past heroic acts in the strive for self-government in adverse circumstances, we sometimes call ourselves free. As long as someone exercises power or jurisdiction over us, over any part of our collective life, enacts laws without our participation or consent, or claims sovereignty or superiority over us with the appearance of legality, we are neither free nor equal. To consent in being treated like this does not validate it. The consent to enslavement does not liberate nor makes us equal.”

    “We must not fall into the trap of thinking that there are values superior to liberty. Some suggest that economic security and progress from misery are the highest values. Through this path, a dichotomy has been established in our country. On one side, we have those who battle for freedom and on the other hand those who advocate for economic welfare. The first ones are often referred to as dreamers and naïve people alienated from reality while the second ones are those in touch with reality and with a deeper vision of our problems. As such, it is said that we must first try to solve our daily life problems in order to give attention to the complaints of the spirit.”

    “The mistake, based in the wrong interpretation of a great concept, is mortal. What has been said is that liberty consists of a bundle of values. It is not enough to achieve some of its components; it has to be attained in its totality. Its not enough to have a paper liberty. We cannot be content with the appearance of liberty or with caricatures of it. On the other side, to accept a conditioned liberty is a dangerous mistake, because at the bottom, the settlement of priorities among the components of liberty, the acceptance of liberty by installments, not knowing when it is going to arrive, is nothing else than an unconscious version of the old gradual colonialism.”

    “In our long journey by the labyrinths of injustice, we also acquire fears that disrupt knowledge. Our peculiar political language, elliptic, ectopic, edging in gibberish, offers samples of that. The word “nation”, that describes what we are, inspires dread on many. To the term “colony”, is imposed a partisan load, that it should not carry, because such a term only describes an undeniable reality. Some differentiate between nation and motherland [patria] and still others call their nation the one that abuses their own. The term “association” causes problems to others. They substitute it with “union” and for more precaution, by the phrase “permanent union”, in order to avoid the thought or idea of separation from our beloved associate. For the same reason a difference is made between the terms “permanent union” and “free association.” This rhetoric fears, this yearning for permanency in an everchanging world, are indicative of distrust in the wisdom of this country. It is time to cease treating the country of ours as an entity of scarce cleverness and ill by chronic fears. We must not nourish fear; instead, we must fight to dissipate it.”

    “We must formulate a new discourse, free of the defects of which I have been speaking; all sub products of colonialism, a frank and brave discourse that confronts our realities that restores to the preeminent seat of honor the values of liberty, equality and fraternity, based on the great political and social revolutions. Let us give back to this country its voice, let us make it strong, demanding and not complacent. The centers of powers do not move if not beaten. Let us abandon the vocabulary of subjugation.”

    “There are other methods of decolonization; among the one, that merit special consideration is the convocation of a Constitutional Assembly. I have written about it in other occasions.”

    “As a conclusion, at the end of this century of punishments that began with the hurricane of San Ciriaco and finished with San Mateo Apostol, it cannot be remembered as a celebration what only merits the title of the Terrible Year of the Recolonization and demands that the condition to which we were subjected to then and that still persists be denounced. The injustice is not suffered in silence, nor chanting panegyrics, or praises, or applauding. Injustice is condemned and combated without rest.”

    VII. The call

    Por arriba el llamado,
    tira de mí con tenue hilo de estrella,
    abajo, el agua en tránsito,
    con sollozo de espuma entre la niebla.

    Beside his services to the community, the tenure of high government positions and his contribution to important public institutions of the Government, Doctor José Trías Monge studied, wrote poetry, played music, enjoyed literature, meditated, read, and thought. At eighty-three he assisted to his legal office, actively writing his memoirs with renovating illusions looking for new challenges. His temperament was not what it used to be, his glance reflected sorrow, and familiar tragedies produced profound sadness. His son José Trías Grimes, Esq. died in 1994 and in 1999 his beloved wife Doña Jane Grimes de Trías passed away. Later, he married Doña Viola Orsini. One year later after his wife died; Trías published his first collection of poems, Testimonio. In the last page is a delicated poem in remembrance of his beloved wife, Jane Grimes. Reading it permits us to know the sensibility of this man of State.

    Despedida

    Cuando suceda, que no sufra nada,
    que ocurra como noche de azucena,
    noche de brisa tibia y luna llena
    que se acerca benévola y callada
    sin que casi se sienta su pisada.

    Que no se le castigue, si es tan buena,
    si no quiere quejarse, aunque la pena
    ya ocupa gran porción de su mirada.

    Que todo luzca igual, ramos de flores 
    que esparcen por la casa sus amores,
    la estrella que se prende a su ventana.
    Y antes que la vida le retire la luz
    que la sostiene, que me mire como
    quien sólo dice hasta mañana.

    On June 24, 2003, newspaperman Ismael Torres called urgently, “Trías is dead, he passed away in Boston.”

    “Un constitucionalista para el cielo”
    “De luto la historia y la Judicatura”
    “Pesar tripartito por una gran perdida”
    “Ex Chief Justice Trías Monge dead at 83 at Boston‟s hospital”

    A Puerto Rican renascentist is dead. Puerto Rico lost one of its greatest jurists, a fine scholar that contributed always with his profound intelligence to the cause of law. During his term as Chief Justice of the Supreme Court of Puerto Rico, he renewed the administration of justice and left a legacy with his judicial decisions; his tenure was an era of excellence in the art of adjudication. It was natural for Trías to be leader of the Judicial Branch, a paradigm as Chief Justice. In a Bar Association Assembly, as Chief Justice, he defended the civil law lineage of Puerto Rican law. Also a defender of our national language, the Spanish Language and a Director of the “Academia Puertorriqueña de la Lengua Española.” His important books compose an intellectual endowment and must necessarily be consulted, for their quality and profoundness. Of them, his Constitutional History opens new paths. If other jurists and historians, in their enthusiasm and interest offer us their novel contributions, as expected, everybody gains, and the constitutional historiography is enriched, for whatever motives. Let us not forgets Rubén Dario‘s poem about the motives of the wolf. At the end, everybody has the right, but more than that, the duty to expose ones ideas, and if in the contrast and collision of ideas, we do not get the truth we will get near it.

    Is there another book like Trías Monge‘s, El Choque de dos culturas jurídicas? A volume that has three purposes; its a history of the justices of the Supreme Court of Puerto Rico, a critical exposition of the juridical and legal transculturation and a history of the Federal Court interrelation with Puerto Rico‘s judicial and legal tradition. The learned jurist and intellectual professor of law Doctor Demetrio Fernández Quiñones said that “There is no reason to see this book of Trías Monge as a historical narrative. The historical dissertation is in itself an excuse to reargue the necessity of a national Puerto Rican law. This, more than a reality, is a desideratum.

    From the forum of the centenary of the American invasion he recorded in writing, for the American public and intellectuals, an allegation which title means everything, Puerto Rico: The Trials of the Oldest Colony in the World. In the case of Trías Monge “el olmo ofrece peras”. He turns from an insider, advisor, internal co-author of the “Free Associate State” of Puerto Rico or the Commonwealth, at the side of a leader of the entity of Governor Luis Muñoz Marín, and that generation, with party discipline, loyalties, commitments and obligations, as years pass, to a combatant making public his yearning for liberty and the decolonization of Puerto Rico. Trías accepted the summons of the Civil Rights Commission, to explain his intervention in the persecutions of the years of La Ley de la Mordaza [the Puerto Rican Smith Law], against the independentists and the formation of the files or carpetas. He testified and was interrogated by the president of the Commission, the eminent jurist Enrique González, a distinguished and respected criminal attorney; also a recognized independence advocate.

    Until his final days, Don José Trías Monge continued his proposals and struggles for the decolonization of the oldest colony in the world, Puerto Rico. He wanted to consign his love for his homeland and his desire for colonialism to end. He wanted us Puerto Ricans to seek a political condition or status based on liberty, to assure the happiness, the material and spiritual progress of Puerto Rico.