The Puerto Rico Constitution: A Unique Territorial Framework

This essay is part of a 50-state series about the nation’s constitutions. We’ve asked an expert from each state to dive into their constitution, narrate its history, identify its quirks, and summarize its most essential components for our readers.

The Puerto Rico Constitution, enacted in July 1952, stands at the crossroads of American federalism and imperialism. Exploring the history, breadth and richness of the repertoire of protections enshrined in the Puerto Rican Bill of Rights — together with the constitution’s structural provisions, the uniqueness of its amendment mechanism, and its supreme court’s jurisprudence — reveals why the study of Puerto Rico’s constitutionalism must be situated within the island’s broader struggle for self-determination and decolonization.

Historical Context

At the outbreak of the Spanish-American War in 1898, Puerto Rico was, besides Cuba, Spain’s oldest colonial possession in the Americas dating from 1493. Puerto Rico’s constitutional trajectory began at the height of the Napoleonic Wars, when the Spanish Cortes rejected the reign of Joseph Bonaparte by proclaiming the short-lived Cádiz Constitution of 1812, which was extended to Puerto Rico. But with the restoration of Ferdinand VII and his heirs to the Spanish throne, Puerto Rico was plunged back to colonial absolutism for most of the 19th century, until 1897, when a powerful set of geopolitical catalysts triggered by Cuba’s third war of independence left Madrid no choice but to extend to Puerto Rico an autonomy charter tantamount to British dominion status. This unique, yet untested, constitutional experiment crumbled in the wake of the Spanish-American War the following year. The U.S. invasion led to the immediate imposition of military government on the island, lasting only two years and giving way to a civilian government following Congress’s enactment of the Foraker Act in 1900. Seventeen years later, Congress conferred American citizenship on the people of Puerto Rico following its approval of the 1917 Jones Act.

Yet, the federal Constitution, along with American citizenship, did not follow the American flag in its entirety to Puerto Rico, as the U.S. Supreme Court made clear in a series of infamous decisions collectively known was the Insular Cases, beginning in 1901 and limiting the constitutional rights and protections available to the residents of Puerto Rico. While Congress, under the Jones Act, extended American citizenship in 1917, Puerto Rico has since remained a so-called unincorporated territory, subject to Congress’s plenary powers under the federal Constitution’s Territorial Clause. Thus, in the words of Justice Edward Douglass White’s 1901 concurrence in Downes v. Bidwell, Puerto Rico is “foreign to the United States in a domestic sense.”

While the “winds of change,” in the words of then-British Prime Minister Harold Macmillan, were blowing across most of the colonial world at the height of the postwar period, President Harry Truman signed the 1947 Elective Governor Act, which put an end to governors appointed by the president and authorized the people of Puerto Rico to elect their own governor. Three years later, Public Law 600 provided “for the organization of a constitutional government by the people of Puerto Rico.” Congress purported to adopt this statute “in the nature of a compact so that the people of Puerto Rico may organize a government pursuant to a constitution of their own adoption.” Puerto Rican voters approved Public Law 600 on June 4, 1951.

A local constitutional convention of 92 delegates was elected to draft the constitution, which Public Law 600 stipulated must include a bill of rights and provide for a republican form of government. The draft was ratified by the people in a referendum held on March 3, 1952 and immediately transmitted to Congress for its approval. Congress ratified it, but not without first eliminating a section of the Bill of Rights that purported to constitutionalize a significant panoply of social rights, including a right to work, health care, food, clothing, housing, and social services. Following Truman’s official approval, Puerto Rico’s constitutional text went into effect on July 25, 1952.

The constitutional framework came to life under the name “Commonwealth,” intentionally translated to Spanish as Estado Libre Asociado. Despite enactment of the constitution, the provisions of the Foraker and Jones acts perpetuating the island’s political and economic subordination to the United States continued in full force under a new statutory instrument known as the 1950 Federal Relations Act. Nevertheless, Puerto Rico’s governmental authorities, emboldened by the island’s removal from the United Nations’s list of non-self-governing territories in 1953, described the overall political relationship between the people of Puerto Rico and Congress as one premised on a bilateral compact, alterable only by mutual consent of the parties. 

In this way, the myth of the bilateral compact was born, notwithstanding that Public Law 600 neither modified “the status of the island of Puerto Rico relative to the United States” nor abrogated “the powers of sovereignty acquired by the United States over Puerto Rico,” as Resident Commissioner Antonio Fernós Isern had clearly forewarned in 1950 during the congressional hearings leading to the enactment of Public Law 600. Congress’s unbridled authority over Puerto Rico, even after the inauguration of the 1952 Constitution, remained unaltered.

It was Puerto Rico’s years-long bankruptcy crisis of 2015 and 2016 that finally — and decisively — pierced the colonial veil. In June 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act, known as PROMESA and highly contested by the Puerto Rican people, specifically created to regulate territorial insolvency. Anchored on an expansive reading of Congress’s plenary powers under the Territorial Clause, the law effectively eviscerated Puerto Rico’s autonomy with respect to its internal governance.

PROMESA turned upside down the proposition that, in 1952, Congress entered a compact with the people of Puerto Rico, whereby it permanently relinquished “its territorial powers” over the island’s internal affairs. It was precisely in the exercise of its plenary authority under the Territorial Clause that Congress, without any consent from the people of Puerto Rico, placed the island’s local governance in the hands of an unelected Financial Oversight and Management Board. PROMESA was the last nail in the compact mythology’s coffin.

The Bill of Rights

The Puerto Rico Bill of Rights, which is Article II of the constitution, departs in significant respects from the authoritarian tradition then in vogue across most of the Caribbean and Latin America. The Puerto Rico Constitution brought to life a significant catalogue of fundamental rights — some of which are still unavailable at the federal level — inspired by the human rights ideology emerging from the Nuremberg trials and, more specifically, superimposing on the Puerto Rican landscape some of the more significant principles found in the 1948 United Nations Universal Declaration of Human Rights. The ideological compass of the constitution’s Bill of Rights is obvious in its first section, proclaiming human dignity is inviolable in Puerto Rico. Contrary to its federal counterpart, the Puerto Rico Bill of Rights explicitly establishes a right to privacy, available even in the absence of state action. And contrary to the federal First Amendment, where there is no textual reference to a separate and indivisible right to freedom of association, the Puerto Rico Bill of Rights explicitly establishes one. It also provides a right to public non-sectarian education, requires “complete” separation of church and state, and establishes that classifications made on account of race, color, sex, birth, social origin or condition, or political or religious ideas are all suspect and must be judicially reviewed on the basis of strict scrutiny. Contrary to the federal text, it explicitly provides that the right to vote is equal, direct, secret, and universal. 

Similarly, criminal defendants find explicit protections. The Puerto Rican constitutional convention elevated to the constitutional text the prohibition of wiretapping, incorporated the rule suppressing the fruit of the poisonous tree, prohibited the death penalty, and constitutionalized the right to bail while mandating incarceration of defendants unable to post bail cannot exceed six months. 

True to the ideals of the UN’s Universal Declaration of Human Rights, the Puerto Rico Bill of Rights extends important safeguards to the island’s labor force, such as the right to equal pay for equal work, to a reasonable minimum wage, to extra compensation for work in excess of eight hours a day, and to organize, collectively bargain, and strike, among others.

Unique Characteristics

The Puerto Rico Constitution differs from the federal Constitution and many state constitutions in significant ways.

For example, it establishes a redistricting board chaired by the chief justice of the Puerto Rico Supreme Court, made up of two additional members who cannot belong to the same political party who must be nominated by the governor with the advice and consent of the Puerto Rico Senate. It requires that when a majority party wins over two-thirds of the seats in the Puerto Rico Senate or House of Representatives, the minority parties must be allocated extra seats until the total number of minority party seats in each chamber is equivalent to a third of the total number of seats.

It confers to the governor so-called line-item veto authority, a power the U.S. president doesn’t have. It did away with a circuitous and highly defective judicial system, replacing it with a new judiciary branch unified with respect to jurisdiction, administration and operation. The Puerto Rico Constitution, unlike its federal counterpart, requires balanced budgets (though this provision was blatantly violated by local political branches, as the island’s colossal bankruptcy revealed). It declares, moreover, that it shall be the public policy of the government to conserve the island’s natural resources and historical sites, and to provide for the rehabilitation of inmates incarcerated in local correctional facilities.

Governmental Structure

The Puerto Rico Constitution diffuses power among three separate and indivisible branches of government. The legislature is a “continuous” and bicameral parliamentary body of general, not enumerated, powers. The functioning of the legislature is continuous. Its various committees, moreover, now enjoy constitutional protection in the exercise of their legislative roles. The 1952 constitution granted the legislature the power to override gubernatorial vetoes (except for the line-item veto), conduct impeachment trials, and trigger the available constitutional amendment mechanism.

Along similar lines, the newly minted constitution established a “unitary” executive branch under the exclusive aegis of a governor elected by the direct vote of the Puerto Rican electorate. The Puerto Rican framers entrusted the governor with the power of appointment and removal, as well as complete control of the extraordinary session mechanism. It is the governor who decides what issues the legislature ought to consider in an extraordinary session, which the governor alone can convene.

The constitution finally disentangled the judicial branch from the executive branch, and its administration now lies with the chief justice of the Puerto Rico Supreme Court. For the first time since the inception of the court in 1899, its justices are nominated by the governor with the advice and consent of the local senate. In a significant addendum to the Puerto Rican institutional repertoire, the framers established that the supreme court itself shall determine its own size. If the court wishes to increase or decrease its size (which can never be less than four associate justices and one chief justice) it must inform the legislature — which cannot unilaterally modify the court’s size without the consent of the justices. Contrary to the federal Constitution, the Puerto Rico Constitution explicitly grants the judiciary the power of judicial review while requiring that findings of unconstitutionality must be rendered by a majority of the justices of which the court is composed.

Significant Decisions

Some of the more significant and progressive decisions rendered by the Puerto Rico Supreme Court involve issues arising under the constitution’s Bill of Rights.

In 1975’s E.L.A. v. Hermandad de Empleados, the island’s high court found that Puerto Rico’s Bill of Rights was intentionally designed to offer far more protections than its federal counterpart, and that in construing the proper scope of those rights and protections the court should not always mimic the U.S. Supreme Court. Instead, it should also look at the UN’s Universal Declaration of Human Rights and the Interamerican Declaration of the Rights and Duties of Man (among other international legal instruments).

In 1963’s Ocasio v. Díaz, the court held that the constitution requires that all children be afforded equal treatment under the law regardless of whether their parents were married at the time of their birth. The court in 1978’s Figueroa Ferrer v. E.L.A. held that a married couple’s decision to seek divorce by mutual consent is constitutionally protected and falls under the privacy guarantees of the Bill of Rights.

In 1980’s People v. Duarte, the court held that the Bill of Rights offers an independent basis for the constitutional protection of women’s reproductive rights. Duarte remains good law, even in the aftermath the U.S. Supreme Court overturning Roe v. Wade. In 1982’s Soto v. Attorney General, the court found an implied right to access public information. Interestingly, in 1965’s People v. Superior Court, a unanimous court declared that all judicial proceedings in the courts of Puerto Rico shall be conducted in Spanish.

Amending the Puerto Rico Constitution

Structurally, Article VII, which vests in the legislative branch the authority to determine when to activate the amendment mechanism, mimics the federal model. Like the federal Constitution, there are only two paths to proposing constitutional amendments: either by passing a concurrent resolution in both the House and the Senate or by calling a constitutional convention. Both therefore lack a mechanism of amending the constitution solely by means of popular initiatives.

The Puerto Rican model, however, departs from the federal approach in significant ways. Article VII’s Section 1 establishes that the amendment proposal (by way of a concurrent resolution) must garner the approval of two-thirds of the total number of members of the House of Representatives and Senate. The power to ratify is directly vested in the people, who can either ratify or reject on a referendum the amendment proposals. The governor, like the president, has no constitutional role with regard to constitutional amendments and cannot veto them.

Article VII’s Section 1 also places procedural limits on the legislature, which can present to the electorate a maximum of three proposed amendments in the same referendum, each of which must be published at least three months before the date of the referendum. Each proposed amendment must be voted on separately and specify its effective date.

The Puerto Rico Constitution has been amended only sparingly since its 1952 adoption. Immediately following ratification, the constitution underwent two modifications at the urging of Congress: It was amended to explicitly safeguard the right to elementary education in non-governmental schools, and to include an additional sentence to say, in no uncertain terms, that constitutional amendments must be compatible with Public Law 600, certain other federal laws relating to the island, and the U.S. Constitution. Both amendments were approved by a majority of the Puerto Rican electorate on November 4, 1952.

Article V was also amended in 1960 to provide that the Puerto Rico Supreme Court could decide cases in panels of no fewer than three justices, except for declaring that a statute is unconstitutional which requires a majority of the total number of justices. A subsequent amendment increasing the island’s debt ceiling was approved in a 1961 referendum. Three years later, another modification vested in the legislature the power to decide how to fill vacant district seats. The most recent amendment to the island’s constitution was passed in 1970 and lowered the minimum voting age from 21 to 18 years.

A Failed Experiment in American Federalism?

Born in the postwar period during the waning days of the Truman administration, Puerto Rico’s internal governing document belongs to another time and place. The 1952 constitution is by far Puerto Rico’s most significant legal instrument since the proclamation in 1897 of the short-lived autonomic charter during the waning days of Spanish rule. And imbued with the ideological values of the 1948 Universal Declaration of Human Rights, the 1952 constitution gave the island significant political authority over its internal governance while endowing its people with a robust catalogue of fundamental rights.

But seven decades on, the constitutional experiment of 1952 is exhausted. At a time when the U.S. Supreme Court has yet again confirmed Puerto Rico’s colonial condition, the realities of a new and uncertain order at home and abroad require fresh thinking whether the moment is ripe for reassessing Puerto Rico’s politico-constitutional labyrinth.

Rafael Cox Alomar is a professor of law at the David A. Clarke School of Law of the University of the District of Columbia in Washington D.C. and author of The Puerto Rico Constitution.

Suggested Citation: Rafael Cox Alomar, The Puerto Rico Constitution: A Unique Territorial Framework, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Jun. 30, 2025), https://statecourtreport.org/our-work/analysis-opinion/puerto-rico-constitution-unique-territorial-framework