Québec-Canada and Puerto Rico-United States

This article is a comparative analysis of Canada and the United States. It is also a sustained analysis of the Québec-Canada and Puerto Rico-U.S. relationships. Quebec and Puerto Rico are the clearest and most paradigmatic cases of stateless nationhood in Canada and the United States. There are other groups that could possibly be considered internal nations, such as the Native peoples of Canada and the United States. Also, one could ask whether Guam, the U.S. Virgin Islands, or U.S. Samoa, may be comparable to Puerto Rico. In this section, I explain why I have chosen to focus my attention on Quebec and Puerto Rico. The universe of cases I have worked on for over 25 years are stateless nations’ national movements in established liberal democracies. These substate national societies exhibit national consciousness, are clearly territorially concentrated, and their societies are characterized by languages, identities, institutions and cultures, which are different from those of the majority nation.Footnote ⁸

In addition, and importantly, the political party systems of these societies are distinctive and unusual. The political party systems of established sovereign states typically exhibit two axes: the political economy axis and the state-society axis.Footnote ⁹ In societies such as Puerto Rico, Quebec, Catalonia, Euskadi and so forth, the principal axis of their substate parties is about their vision of the constitutional future of the substate national society. The political economy and the state-society axes exist in these cases, but they are secondary, especially when elections are held. Thus, in many of these cases, the substate parties tend to bifurcate, or at times trifurcate, into these political orientations: pro-autonomism, pro-independence or pro-federalism, and subvariants of these orientations.Footnote ¹⁰ This pattern is consistent with the fact that in most of these cases, these national movements are in Phase C of their political development.Footnote ¹¹ Most of these parties are also ‘national parties’, which ‘assume the existence of a political nation and identifies with it’.Footnote ¹²

The native peoples of North America were colonized by the invading Europeans, and in that sense their historical experience is different from racial minorities such as African Americans in the United StatesFootnote ¹³ In the United States, native peoples were decimated, and, in addition, they were forced into reservations, an early case of territorial indirect rule, which ‘segregated Indians from whites, stripped Indians of land, and minimized the political threat they posed by subjecting them to domination under colonially supervised customary law’.Footnote ¹⁴

In Canada, the Aboriginal peoples include Métis and Inuit as well as Indian First Nations. The Métis generally lack a territorial base, with the exception of small settlements in Northern Alberta. More attention is generally paid to the territorially based and community-based First Nations. Indian policy since Confederation has been policy for the benefit of the Canadian state: its telos has been to make room for white settlement. ‘Canada’s federal system was constructed without any inclusion and consideration of, or even respect for, the peoples that had occupied the land from times immemorial’.Footnote ¹⁵ The late recognition of aboriginal and treaty rights under Section 35 of the Constitution Act, 1982 ‘does not mean principled inclusion in the institutions and procedures of Canadian federalism’. At most, it means an ambiguous system of aboriginal multilevel governance, which ‘merely describes a process driven by inequalities of power and influence’.Footnote ¹⁶ In addition, it may be said that the Aboriginal peoples of Canada have developed distinctive visions of intergovernmental relations, and to some extent, they put forward a distinctive conceptualization of Canadian federalism.Footnote ¹⁷ The Inuit have the territory of Nunavut since April 1, 1999.Footnote ¹⁸ It is ‘a very challenging experiment in the Canadian project to devise forms of self-government appropriate to the circumstances of the different Indigenous peoples’.Footnote ¹⁹

The Canadian federal government has concocted 22 self-government agreements with 43 Aboriginal peoples (as of 2018), but as long as Canada’s First Nations ‘remain junior partners in a federal system where constitutionally guaranteed sovereignty rights are only accorded to federal and provincial governments, a meaningful form of self-government and autonomous policymaking will remain out of reach’.Footnote ²⁰

Regarding Guam, the U.S. Virgin Islands and U.S. Samoa, the political party systems of these small societies are not characteristic of stateless nations. Guam has a two-party system dominated by the local Democratic and Republican parties. The U.S. Virgin Islands has a three party system dominated by Democrats and Republicans. In addition, these societies do not exhibit national consciousness to the degree that Québec and Puerto Rico do. The native peoples of Canada and the United States also do not have a substate political party system characteristic of stateless nations. In sum, Québec and Puerto Rico are the best exemplars of stateless nationhood in Canada and the United States.

Political culture and federalism in Canada and the United States

Whether a multiethnic or multinational liberal state can support a polity that incorporates either of the two variants of models of governance presented above will generally depend on the formula for federalism it embodies, given that federalism is ‘a particular way of sharing political power among different peoples within a state’.Footnote ²¹

The traditions and ideologies that have influenced a country’s political culture – with respect to the tolerance for cultural, ethnic and linguistic diversity – help to shape the long-term development of conceptions of federalism in a state. With respect to the United States, we should underscore the fact that U.S. politics is ‘best seen as expressing the interaction of multiple political traditions, including liberalism, republicanism and ascriptive forms of Americanism, which have collectively comprised American political culture, without any constituting it as a whole’.Footnote ²² In contrast to the Tocquevilian-Hartzian thesis of Lockean liberalism’s hegemonic role in U.S. political culture, the

Several consequences are as follows: (a) on this view, purely liberal and republican conceptions of civic identity are often unsatisfying to many in the United States; (b) it has been typical, and not unusual, for U.S. institutions to embody strikingly opposed beliefs and (c) when older types of ascriptive inequalities have been rejected as illiberal, typically, new forms of hierarchical subordination have been adopted.Footnote ²⁴ An example of the contradictory combination of traditions that has characterized U.S. political culture – which is pertinent for our purposes – is the special status developed for Puerto Ricans between 1898 and 1917, and thereafter. Their hybrid political and civic status ‘did not fully satisfy either those who believed that all U.S. citizens should have equal rights or those who thought that inferior races should be denied citizenship’.Footnote ²⁵ The multiple-traditions thesis highlights the fact that nativist and racist ideologies have not just been occasional occurrences in U.S. politics.

Building on, but going beyond John Higham’s work, the thesis sees ‘American nativism as a species of modern nationalism’.Footnote ²⁶ Higham writes that

By the 1890s, nativists ‘repeatedly championed the values of nationalism in a very conscious explicit way … They pleaded for a reawakened sense of nationality. Sometimes in place of any specific accusation against the newcomers, they argued simply that a great nation requires a homogeneous people’.Footnote ²⁸ In the United States, minorities that have tried to maintain their sense of worth as a distinct people and as a culture have not been accepted as equals by the larger society. As Kenneth Karst puts it, ‘the history of discrimination by culturally dominant Americans against people they see as cultural outsiders provides one cautionary tale after another’.Footnote ²⁹ If, according to the multiple-traditions thesis, nativist, xenophobic and racist ideologies – such as those explored by Higham – have been an important tradition in U.S. political culture, it would seem that such ideologies are also bound to influence long-term political development and, specifically, evolving conceptions of federalism, which give shape to underlying notions of nationhood and civic identity. In the United States, therefore, the nativist and racist ideologies cited above, which are part of the multiple traditions in U.S. political culture, have influenced the development of conceptions of federalism, given that these conceptions are inextricably tied to ideas about citizenship and nationhood.

Moreover, in recent times, the United States has been evolving and we now have a far- right Trumpist white ethnonationalism. Trumpism is a new ethnonational ‘ascriptive form of Americanism’ and it aims to reformulate U.S. national identity, feeding an exclusionary state nationalism in the United States exacerbating national divides, and having an especially negative impact on Puerto Rico and Puerto Ricans. Concretely, this new ethnonational ideology has led to an undisguised disdain for Puerto Rico and Puerto Ricans, ‘to the point that Puerto Rico has been disfavored, underserved, and shunned by the Trump administration’.Footnote ³⁰

On the other hand, the political culture of Canada reflects the fact that the Canadian sense of nationhood is intertwined with Canadian federalism. If anything distinguishes Canadian federalism, it is the fact that Canada is a multinational federation in which multiple identities and loyalties flourished. Thus, the British North America Act of 1867 – which established the Canadian federation – recognized this fact, and the ‘Canadian Charter of Rights and Freedoms appears to acknowledge that group rights are no less important than the rights of individuals. In these ways, the Canadian constitution not only rejects the atomizing individualism of the American constitution, but also attempts to respond to a different type of society’.Footnote ³¹ In the United States, the federalists and anti-federalists in 1787–1789 could at least agree with one crucial assumption: that the United States was one nation. Their disagreement was about the kind of government it should have.

Federalism in Canada was adopted to facilitate the successful coexistence of different constituent societies. The Fathers of Confederation regarded federalism as a great concession to French Canada. They acknowledged Quebec’s specificity, and relied on it as a key justification for the adoption of a federal system. On the other hand, U.S. ‘federalism is a conception of political federalism that assumes the essential equality of the states and a relatively homogeneous country. Canadian federalism is different, partly because of the distinctiveness of Quebec’.Footnote ³³ What sustains Canada is not a singular patriotism but mutual recognition, given the existence of several constituent societies. In the United States, historically, mutual recognition was not an issue because of its ethnocultural uniformity, and because of the enduring influence of nativist and racist ideologies in the U.S. political culture.

It would seem that federalism is the ideal mechanism for accommodating territorially defined stateless nations within a multinational state. Federalism can provide meaningful self-government for an internal nation, guaranteeing its ability to make decisions in key areas, without being overwhelmed by the larger society. Quebec is the prototypical example.

Had Quebec not been granted substantial powers, it would either not have joined Canada in 1867, or would probably have seceded sometime thereafter.

The United States, on the other hand, presents a good example of the ‘territorial’ conception of federalism. Anglo-Saxon settlers were the clear majority in all of the original 13 colonies. Although in the late 18th century, a unitary national consciousness was still embryonic, the impulse to construct a strong central federation since 1789 helped to overcome fragmentation.Footnote ³⁵ Thus, in the U.S. federation, there was no need for the original division of powers within the federal system to accommodate ethnocultural divisions. The status of minority nations became more of an issue as the United States began its territorial expansion to the south and west, and eventually the Pacific, as the United States incorporated the homelands of American Indians, Chicanos, native Hawaiians et al.Footnote ³⁶ However, no territory was accepted as a state unless these proto-minority nations were outnumbered within it. In short, U.S. federalism had no interest in accommodating substate demoi. In the United States, the aim was to

The Canadian federation exhibits many of the hallmarks of a genuine multination federation with respect to the Quebecois, if not the Aboriginal peoples. Interestingly, though, many people in English Canada have not fully accepted a multination model of federalism. In a multination conception of federalism, since nationality-based units and region-based units serve such different functions, there is no reason to think that they should have the same powers. Nationality-based units will tend to seek more expansive powers than region-based units. Thus, in Canada, the overwhelming number of anglophone Canadians – following a purely territorial model of federalism – reject the notion of ‘special status’ for Quebec, while most Quebecois want an even more decentralized division of powers. This is the crux of the asymmetry debate that has been at the heart of the current constitutional impasse in Canada. ‘So long as English-speaking Canadians cling to [an] … ideal of a unitary Canadian nationality, they will never accept the asymmetry implicit in a multination conception of federalism’.Footnote ³⁸ For many in Quebec, however, to grant ‘equal powers to region-based units and nationality-based units is in effect to deny equality to the minority nation, by reducing its status to that of a regional division within the majority nation’.Footnote ³⁹ Thus, the demand for ‘special status’ is a quest not just for additional powers, but for national recognition of a substate national society. To sum up, the formulas for federalism in Canada and the United States reflect the elements of the political culture in each of these countries that are shaped by their notions of citizenship and nationhood. The model of federalism in the United States seems to exemplify a ‘territorial’ conception of federalism, while, in Canada, it exhibits many of the characteristics of a multinational federation, although Anglophones and Francophones differ in their degree of acceptance of a genuine multinational federation model.

Constitutionalism and the politics of recognition in Canada

In 1867, the Canadian Fathers of Confederation requested that the British Parliament promulgate the British North America Act (‘BNA Act’), creating the Dominion of Canada. The founding moment for Canada was very different from the United States one that took place earlier in Philadelphia. Canadians were not seeking independence (it would not happen until after World War I), but the Fathers envisioned the legal establishment of the Dominion of Canada as a continuation of a very old constitution rather than the creation of a new one.Footnote ⁴⁰ For the fathers of early Canadian constitutionalism, there was no doubt that legitimacy rested with the long-standing institution of Parliament and not directly with the people. Several Canadian constitutional scholars have maintained that the most important development in Canadian constitutional history has been the slow but steady erosion of this view of legitimacy in favor of the modern one. Developments in Canada took place at a very slow pace. For example, the Statute of Westminster, which formally acknowledged Canada’s legislative sovereignty, was enacted in 1931, but the written portions of the Canadian Constitution remained in England as an act of the British Parliament until 1982. It took over 50 years to ‘patriate’ the Constitution in part because Canadian leaders could not agree on a formula for amending the Constitution, that is, on the distribution and balance of sovereign power in the nation they were trying to build. Public participation in these constitutional matters began to increase in the 1970s as the larger issues of human rights and Canadian identity began to come to the fore.

Until the 1960s, the Constitution was neither discussed nor considered relevant to public debate. Political culture in Quebec was constrained by a traditionalist Catholicism.

All of this began to change in the 1960s, ‘when the constitutional debate expanded beyond questions of an amending formula and into broader issues of the nature of the political community and the character of Canadian federalism itself. What precipitated this broadening was the rise of Quebec nationalism’.Footnote ⁴² In the 1960s, Quebec’s ‘Quiet Revolution’ was the catalyst that transformed Canadian politics. It was, in essence, a Montreal-centered challenge by an emergent Francophone ‘new middle class’ to the conservative, agrarian nationalism of traditional Quebec.

The principal thrust of the Quiet Revolution – which included an assertive and activist Francophone nationalism, clear notions of public action and a strong mandate to support the cultural and economic interests of Francophones – helped to break with the passivity of French Canadians’ traditional strategy of cultural survival (which encouraged isolation and underdevelopment as the keys to cultural survival), and directly challenged the status of English in Montreal. Before 1960, the ideology of traditional French-Canadian nationalism, la survivance, was a ‘Church-based “defensive” strategy of cultural survival based on avoiding contamination by urban, English Montreal and maintaining French-Catholic purity in the homogeneous environment of rural and small-town Quebec’.Footnote ⁴⁴ The traditional model of linguistic consociationalism, which existed in Montreal, was challenged in the early 1960s by the emergence of several political groups advocating Quebecois separatism. The Rassemblement pour l’independance nationale (‘RIN’) became Montreal’s first mass-based, separatist political party, and there also appeared more radical groups, such as the Front de Libération du Quebec. Footnote ⁴⁵ The Quiet Revolution stemmed from cultural and demographic changes within the French-speaking community. By the mid-1960s, Montreal – not rural Quebec – was the center of French-Canadian culture and the place where the future of French in North America would be determined. The transition had been made from the ‘old conception of French Canadian belonging based on ethnicity to a new, modern civic conception of a Quebec community based on the existence of a French-language network of communications’.Footnote ⁴⁶

While language policy never developed into a major political issue during the Quiet Revolution, Premier Jean Lesage’s administration (1960–1966) marked the first tentative involvement of the Quebec provincial government in language policy and planning. In 1961, the government established a Ministry of Cultural Affairs and an Office de la Langue Francaise, intended to support French language and culture in Quebec. The referenced Ministry produced a White Paper in October 1965 that contained the first call emerging from the provincial government for a systematic language policy. It called on the provincial government to make French ‘the priority language in Quebec’. After describing the ‘perilous state’ of the French language in the province, the report maintained that public policy should ‘take all necessary measures to imprint a new orientation in Quebec society that favors, in all domains of human activity, the normal development of the French language’.Footnote ⁴⁷ In 1967, René Lévesque and others formed the Mouvement Souveraineté- Association, which became in October 1968 the Parti Québécois. Meanwhile, provincial politics in Quebec showed that language disputes could no longer be contained by the old pattern of elite management. Although the political economy of language in Montreal in 1969 was such that nationalists were defeated in the legislative struggles over proposed Bills 85 and 63, the language question had now been put on the agenda of mass politics.Footnote ⁴⁸

In 1968, Pierre Elliott Trudeau was elected Canada’s prime minister, a post that he held (except for a 9-month hiatus) until 1984. Trudeau was a strong opponent of Quebecois nationalism, viewing it as reactionary.

According to Louis Balthazar, a prominent Quebecois political scientist, Trudeau

Thus, in 1969, the Trudeau Administration promulgated the Official Languages Act, which federalized French and English as Canada’s two official languages, and created bilingual districts in areas where Francophones and Anglophones both exceeded 10% of the population. Subsequently, Quebec’s new premier (elected in 1970), Robert Bourassa and his government, passed Bill 22 in 1974, which declared French as the official language of Quebec, and declared the government’s intention to present French as ‘the ordinary language of communication’ in all spheres of Quebec life. Thus, ‘Bill 22 proclaimed a “French Quebec”: Montreal was no longer officially bilingual, and although Bill 22 protected Anglophone privileges in a number of key areas, the “majority psychology” of Anglophones was shattered by the bill’.Footnote ⁵¹

On November 15, 1976, the Parti Québécois (‘PQ’) scored a stunning triumph in the provincial elections. The new Premier, René Lévesque and his government immediately set on developing a language policy. Barely 9 months after the November elections, in 1977, the new provincial government enacted Bill 101, the Charter of the French Language. Bill 101 ‘was unmistakably the policy of an independantiste party, breaking new ground on matters such as the “Quebec clause,” French-only public signs, and mandating French as a language of work in local public institutions regardless of their linguistic composition’.Footnote ⁵² The Charter of the French Language had two principal goals: franchising the economy, and reshaping public schools to protect the demographic position of the Francophone community, particularly in Montreal. Moreover, ‘Bill 101 accomplished the Francophone nationalist goal of turning English-language education in Montreal into a “privilege” for a narrowly defined community of Anglophones, not a system that integrated immigrants and threatened the Anglicization of Montreal’.Footnote ⁵³

In 1981–1982, Trudeau brilliantly maneuvered to bring home Canada’s Constitution from Britain – a ‘patriation’ representing a final act of severance. In April 1982, Queen Elizabeth proclaimed a new Canadian Constitution in Ottawa, which became known as The Constitution Act, 1982.

The Charter was an important element of Trudeau’s constitutional vision of a pan-Canadian nationalism built on the equality of individuals and provinces. The patriation of the Constitution without Quebec’s participation produced resentment within Quebec that fostered a separatist animus. With the threat of dissolution in the air – and a new Progressive Conservative administration in power, headed by Brian Mulroney – the next round of constitutional debate was directed at bringing Quebec back into the constitutional fold. This is now known as the ‘Quebec round’, and resulted in the Meech Lake Accord (1987).Footnote ⁵⁵ On June 3, 1987, the provincial premiers and Prime Minister Mulroney signed the Meech Lake Accord. The most important feature of Meech Lake was the inclusion of a distinct society clause that stated, in relevant part, as follows: ‘The Constitution of Canada shall be intepreted in a manner consistent with … the recognition that Quebec constitutes within Canada a distinct society’.Footnote ⁵⁶ By insisting on including this clause, Quebec was rejecting Trudeau’s pan-Canadian and centralized model of a nation of equal citizens whose individual rights always trump the pursuit of collective goals. Instead, Quebec was proposing a dualist vision, with Quebec as co-equal with the rest of Canada as a whole, rather than any of the individual provinces. But, the distinct society clause was never adopted, because 2 (out of 10) provincial legislatures failed to ratify it before a deadline of 3 years elapsed. Despite the fact that eight legislatures did ratify it, the agreement was very unpopular in many regions of Canada, and, within Quebec, disapproval of the agreement was seen as rejection of Quebec. The main ingredients of the Meech Lake failure were that: (a) between 1987 and 1990 provincial governments changed, eroding support for Meech Lake; (b) Quebec passed a law requiring all outside signs to be only in French; (c) concern in Anglophone Canada about the distinct society clause and (d) Western Canadian provinces saw that their concerns (such as Senate reform) were given secondary priority.

After the Meech Lake failure, new proposals were floated, and, by mid-1991, the federal government had produced a 28-point package to secure national unity.Footnote ⁵⁷ This new round of constitutional debate was known as the ‘Canada Round’. In addition to addressing Quebec nationalism, the Canada round was supposed to address regional (especially Western) alienation,Footnote ⁵⁸ aboriginal self-government and Canadian nationalism. Contrary to all previous constitutional debates, this round featured a considerable amount of popular consultation, open hearings, traveling task forces and a genuine attempt to bring out a Canada-wide consensus on constitutional issues. The feedback from these consultations was distilled in the Charlottetown Accord of 1992. However, the Charlottetown Accord was defeated in a nationwide referendum on October 26, 1992. In Quebec, 56.7% of the population voted no, and in the rest of Canada 54.3% of the population rejected the Accord.Footnote ⁵⁹

Our review of contemporary Canadian constitutionalism and language politics has shown that the Charter of Rights and Freedoms played a central role in the debates and political struggles over Canadian nationhood in the 1980s and 1990s.Footnote ⁶¹ In light of the failure of the Meech Lake and the Charlottetown Accords, the 1982 patriation of the Constitution and the adoption of the Charter remain the last instance of constitutional high politics in the Canadian federation in the recent past. Understanding the Charter’s political effects on the Canadian conception of nationhood is essential to understanding political development in Canada. Therefore, it will be examined in further detail next.

The Charter of Rights and Freedoms, antidiscrimination law and nation-building in Canada

The phrase ‘Constitution of Canada’ is defined in Section 52(2) of the Constitution Act, 1982 to include three categories of instruments: (a) the Canada Act, 1982, which includes the Constitution Act, 1982 (being Schedule B of the former); (b) a list of 30 Acts and orders in the schedule to the Constitution Act, 1982 (includes the Constitution Act, 1867 and its amendments, the orders in council and statutes admitting or creating new provinces and the Statute of Westminster) and (c) the amendments that in the future may be made to any of the instruments in the first two categories.Footnote ⁶² The Charter of Rights and Freedoms (the ‘Charter’) is Part I of the Constitution Act, 1982. The adoption of the Charter has now imposed upon the federal Parliament and the provincial legislatures a set of limitations on their powers to abridge civil liberties. The civil liberties protected by the Charter include freedom of religion, expression, assembly and association (Section 2); voting rights (Section 3); mobility rights (Section 6); various procedural and other legal rights (Sections 7–14); the right to equal protection of the laws (Sections 15 and 28) and new language rights (Sections 16–23). One notable difference between the U.S. Bill of Rights and the Charter is that Section 33 of the latter enables the Parliament or a Legislature to ‘override’ most of the provisions of the Charter. The override provision thus preserves parliamentary supremacy over much of the Charter.Footnote ⁶³ The notwithstanding clause (also known as the override provision) allows Parliament or a Legislature to declare ‘expressly’ that a statute is to operate notwithstanding a Charter right. Not all Charter rights may be overridden by the use of Section 33, only the fundamental freedoms (Section 2), the legal rights (Sections 7–14) and the equality rights (Section 15).

Thus, among the Charter rights that may not be overridden are the language rights sections of 16–23. Express declarations are also subject to a five-year sunset clause. After the Charter came into force on April 17, 1982, Quebec’s Parti Québécois government passed a statute that added a standard-form notwithstanding clause to each of the statutes in force in Quebec then. No other province besides Quebec has ever used the override power; nor has the federal Parliament.Footnote ⁶⁴

For our present purposes, we should highlight the following sections of the Charter. Section 7 protects due process rights, providing that ‘Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles thereof’. However, Peter Hogg has interpreted this clause as being limited to the protection of procedural due process rights, and not likely to encompass substantive due process rights.Footnote ⁶⁵ The Equal Protection Clause (EPC) is Section 15(1), which provides that: ‘Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability’. Section 15(2) provides that Section 15(1) is not to be taken as precluding affirmative action programs in favor of ‘disadvantaged individuals or groups’.Footnote ⁶⁶ Related to Section 15, Section 28 states that ‘Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons’. Sections 16–23 cover language rights. Section 16(1) states that English and French are the official languages of Canada and have equality of status in all areas of endeavor of the government of Canada. Section 23 covers minority language education. For example, it states that citizens of Canada who are members of the English-speaking minority in Quebec or the French-speaking minority in the other provinces have the right to have their children receive primary and secondary school instruction in their own language in that province. This right, which applies to denominational and nondenominational schools, is possessed by parents who fit into one of the categories established by Section 23. These categories are defined by: first, the mother tongue of the parent (Section 23(1)(a)); second, the language of primary instruction in Canada of the parent (Section 23(1)(b)) and third, the language of instruction in Canada of one child of the parent (Section 23(2)).Footnote ⁶⁷

It should be noted that Sections 15 and 28 of the Charter, which constitute the antidiscrimination provisions of the Charter, are to be considered in conjunction with statutory provisions in Canada that provide for the legal protection of first-level diversity of ethnocultural immigrant groups, who lack founding people status. In Canada, such groups may generally also be referred to as Allophones (non-English or French speakers). Specifically, for example, the Canadian Multiculturalism Act of July 1988 declares that it is the policy of the Government of Canada to ‘ensure that all individuals receive equal treatment and equal protection under law, while respecting and valuing their diversity’ and to ‘promote the full and equitable participation of all individuals and communities of all origins in the continuing evolution and shaping of all aspects of Canadian society’.Footnote ⁶⁸ ‘Multiculturalism programs’ can now be found not just throughout the federal government, but also at the provincial and municipal levels of government and in a wide range of public and private institutions, including schools and business. Among the actual or proposed policies often discussed under the rubric of multiculturalism are: (a) affirmative action programs that seek to increase the representation of visible minorities in the principal educational and economic institutions and (2) flexible work schedules or dress codes to accommodate the religious beliefs of immigrant groups.Footnote ⁶⁹

In view of the antidiscrimination provisions of the Charter and the Canadian statutory provisions promoting multiculturalism policies, it seems worthwhile to inquire whether such provisions that stress the rights of individual immigrant minority group persons to equal treatment can also address the claims for collective rights and recognition of substate national societies. In other words, the issue is whether constitutional and statutory provisions that respond to a politics of antidiscrimination can also be effective in addressing a politics of recognition. The Charter is both a nation-building as well as a rights-protecting instrument. The Charter does not just recognize individual rights, but singles out for special constitutional protection certain groups. Thus, the linguistic dualism of Canada is given special attention and protection (Sections 16–23). The Charter also instructs the judiciary to interpret it ‘in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians’ (Section 27). Moreover, it protects ‘aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada’ (Section 25). Aboriginal people are defined in Section 35(2) of the Constitution Act, 1982 as ‘Indian, Inuit, and Metis peoples of Canada’. Finally, the Charter provides constitutional support to particular groups in the affirmative action clause of Section 15(2).Footnote ⁷⁰ In this sense, the Charter rejects the atomizing individualism of the U.S. Bill of Rights and contains elements of a group, collective or communitarian orientation.Footnote ⁷¹

However, the overwhelming political purpose of the Charter, and its de facto effect, was to oppose the centrifugal forces of peripheral nationalism, and to tie individuals and groups more tightly to the state and to ‘embed them in a strengthened pan-Canadian community’.Footnote ⁷² Thus, Alan Cairns believes that the relation between the Charter and federalism is straightforward: it was a mechanism to limit the creation of provincial diversities. ‘The Charter was to induce citizens to evaluate the conduct of provincial governments through the lens of a rights-oriented Canadianism. In the future, provincial policies were to apply not to distinctive provincial communities but to the provincially resident members of a national community of rights-bearers’.Footnote ⁷³ In terms of the terminology we used in our discussion above about federalism in Canada and the United States, it would seem that the Charter encouraged a gradual distancing from a multination conception of federalism toward a conception closer to the territorialism model. Because Aboriginals in Canada do not define themselves as minorities scattered throughout a heterogeneous society, but as a ‘nation within a nation’, with a unique identity, these peoples – especially the Assembly of First Nations – opposed the Charter. In addition, Quebec nationalist opposition to the Charter was expressed as follows: the Charter ‘perceives equality as having a strictly individual scope and applying uniformly across Canada … The notion of a distinct Quebec society is thus understood as being a source of inequality and incompatible with the principle of equality of all Canadian citizens’.Footnote ⁷⁴ Quebec nationalists portrayed the Charter as an instrument that reduced the powers of the provincial polity: they, in the words of Premier René Lévesque, could never ‘abandon the smallest fraction of this absolutely fundamental right to protect the only French island in the English-speaking sea of the North American continent’.Footnote ⁷⁵

The effect of the Charter on the claims for recognition of internal nations in Canada was to present a new pan-Canadian constitutional vision, which was inimical to their aspirations. In Quebec, for example, the Charter fueled nationalist impulses, as political leaders were able to portray the new constitutional vision as unresponsive to the nation-like aspirations of Quebec. The effect was so dramatic that the next round of debate (Meech Lake and Charlottetown Accords) was aimed at bringing Quebec back into the constitutional fold. The Charter, in effect, renewed and reinvigorated Quebecois aspirations to be recognized as a ‘distinct society’. The Meech Lake Accord ‘concept of enshrining in the constitution a provision that Quebec is a distinct society is not new, but the impact of the Constitution Act, 1982, and in particular the Charter, created a sense of urgency in Quebec that was heretofore absent’.Footnote ⁷⁶

Another concrete manifestation of the incompatibility between the Charter, and antidiscrimination provisions in general, and the claims for recognition by internal national communities in Canada is evident if one focuses on the conflict between the Charter and the notion that the Quebecois ought to be recognized as a ‘distinct society’ within Canada,

The cornerstone of Quebec’s efforts to maintain its distinct identity is the 1977 Charter of the French Language (also known as Bill 101).Footnote ⁷⁸ This law provides for the use of French in specific circumstances, provides for the Francization of business firms and the civil administration, and proclaims Quebec’s intention to be ‘fair’ and ‘respectful’ to ethnic minorities, including the Amerinds, the Inuit and the English speaking community. English minorities have the right to be educated ‘in their own language in specified circumstances. Legislative bills are published in English. Parties in litigation may agree to plead in English in Quebec courts’, and so forth.Footnote ⁷⁹ The security of the French language and culture in the province is seen as fundamental, since it has been thought to be seriously at risk, given declining birth rates in Quebec. Thus, when conflict between the Charter and Bill 101 arises over the language of education, for example, there could not be a clash on a more sensitive issue in Quebec.

Under Bill 101, parents have the right to have their children educated in English, if either parent was educated in English in a Quebec school. English-speaking persons who came to Quebec from outside the province are strongly opposed to this narrow limitation of rights. The Charter of Rights, in Sections 16–23, states more broadly the right of parents of a linguistic minority, such as the English speaking people of Quebec. Thus, ‘it is clear that Bill 101 and the Charter are in conflict on this fundamental point’.Footnote ⁸⁰

In fact, a number of cases have reached the Supreme Court of Canada that raised a conflict between a Charter right and provisions of Quebec’s Bill 101 that promote cultural identity. In Attorney-General of Quebec v. Assoc. Of Protestant School Boards (2 S.C.R. 66 1984), the issue was whether Quebec could restrict admission to its English-language public schools to the children of persons who had been educated in English in Quebec. This was a violation of the minority language educational right of Section 23(1)(b) of the Charter, and the issue was whether this could be justified under Section 1.Footnote ⁸¹ The Court held that the Quebec statute was such a severe infringement of the Charter right that its denial could not be justified under Section 1. The statute was thus struck down and the Court did not even entertain Quebec’s distinct society arguments. In Attorney General of Quebec v. Ford (1988), the Court encountered another one of Quebec’s unique statutes, which required that public signs be solely in French. The Court held that the statute infringed freedom of expression, and that it could not be justified under Section 1. ‘The law was struck down, not because of any doubt as to the legitimacy of the purpose, but because the banning of English was a disproportionate impairment of the rights of English speakers’.Footnote ⁸²

A related case is Devine v. Quebec (Attorney General) (1988),Footnote ⁸³ which examines the language requirements for commerce and business such as forms and advertising, aligns closely with the foundational constitutional principles established in the contemporaneous Ford case, while sharing a broader thematic alignment with the Quebec Protestant School Boards case regarding constitutional supremacy over provincial language legislation.

Both Devine and Ford established that the freedom of expression guaranteed by the Quebec and Canadian Charters includes the freedom to express oneself in the language of one’s choice, and that this freedom extends to commercial expression. Critically, in aligning with Ford, the Devine decision found that the requirement of the exclusive use of French in commerce, such as that mandated by Section 58 of the Charter of the French Language, was not demonstrably justified under Section 1 of the Canadian Charter or Section 9.1 of the Quebec Charter. The courts held that while measures ensuring the predominant display of the French language were justifiable, the complete prohibition of other languages was disproportionate to the objective of promoting the French language. Conversely, Devine upheld provisions requiring the joint use of French (such as on forms and invoices, read with Section 89 allowing another language) because the court found this measure to be a justified, minimal impairment of freedom of expression under both charters. The alignment with the earlier Quebec Protestant School Boards case, which dealt with minority language education rights under Section 23 of the Canadian Charter, lies in the shared judicial rejection of Quebec legislation that attempted to fundamentally negate or substantially undermine guaranteed linguistic rights or freedoms through restrictive measures, thereby upholding the principle that provincial legislation must yield to the higher authority of the Constitution and the Charters.Footnote ⁸⁴

These cases dramatize the fundamental conflict between the Charter and the efforts of Canada’s principal stateless nation to be recognized as a ‘distinct society’ with the wherewithal to preserve and promote its distinct language and culture. This is, in essence, a tension between individual rights and collective identity, and between a politics of individual rights (and nondiscrimination) and a politics of recognition.

In sum, the Charter, and antidiscrimination statutes in general, seem to be ill-suited to address the claims for collective rights and recognition of substate national societies in Canada. The Charter promotes an individual rights- oriented pan-Canadianism that is inimical to the aspirations of substate national societies in Canada, despite the fact that it contains provisions that contain elements of a group orientation. The Charter had a number of concrete political effects. First, it reinvigorated Quebecois aspirations to be recognized as a distinct society, with a renewed sense of urgency. Second, concrete clashes arose between Charter rights and collective cultural identity rights in Quebec. This is most clearly seen in the Canadian Supreme Court decisions examined above that posed a conflict between Charter rights and provisions of Quebec’s Charter of the French Language. In conclusion, neither the Charter, nor federal antidiscrimination provisions in general, are responsive to the Quebecois’ efforts to be recognized as a ‘distinct society’, with the power to preserve and promote their distinctive language and culture. The historic Meech Lake Accord and the Charlottetown Accord rounds are evidence that the Quebecois continued to seek recognition through renewal of the Canadian federation, in spite of the Canadianizing effect of the individual-rights approach of the Charter.

Political culture, the politics of recognition and language policy in the United States

With respect to language and culture in the United States, although some theorists – such as Michael Walzer – maintain that the United States is the paradigmatic case of a liberal civic nation because of its ethnocultural neutrality,

The United States has promoted integration into a societal culture that is based on the English language and ‘has encouraged citizens to view their life-chances as tied up with participation in common societal institutions that operate in the English language’.Footnote ⁸⁶ Moreover, as Charles Taylor has observed, the United States has ‘indeed been hostile to deep diversity and has sometimes tried to stamp it out as “un-American.”’Footnote ⁸⁷ As we discussed above, nativist and racist ideologies have been part of the multiple traditions that have characterized political culture in the United States, and the influence of these ideologies on notions of nationhood and citizenship is also indelibly stamped in conceptions of federalism in the United States. The multiple traditions that have contributed to U.S. political culture have also influenced U.S. attitudes toward language, ethnicity, nationhood and cultural difference.

With respect to language policy, at the broadest conceptual level, the principal contest in the United States has been between supporters of an assimilationist approach versus advocates of linguistic pluralism. The pluralist position took shape in the 1960s, and was part of a new political vibrancy of Latino/a communities in the United States, and particularly by Chicanos/as in the Southwest. The focus was on linguistic and cultural discrimination, and on obtaining protections for linguistic minorities against infringements of their political and civil rights. The aim was to establish that ‘political and civil rights should not be denied simply because the citizen spoke a language other than English’.Footnote ⁸⁸

Assimilationists, on the other hand, generally seek to induce members of minority language groups to acculturate linguistically by adopting the ‘national’ language as their own. Groups such as ‘U.S. English’ and ‘English First’ are representatives of this perspective, maintaining that ‘the policies of bilingual education and bilingual ballots threaten the unity of the United States, and that declaring English as the sole “official language” is a necessary countermeasure to these wrongheaded policies’.Footnote ⁸⁹ This contest between assimilationists and pluralists is, on the one hand, a conflict over rights – equal access to education and government – for immigrant minorities and others who face language hurdles, and freedom of speech in the language of one’s choice. From another perspective, it is a contest over national identity:

For our purposes, what needs to be emphasized is that the debate has been generally between advocates of the right to linguistic nondiscrimination for members of immigrant minority communities, bearers of first-level diversity, scattered throughout the United States’ heterogeneous society and opponents of that right or set of rights – who are staunch supporters of a singular and homogeneous conception of nationhood in the United States. Nowhere in this debate, however, is there a reference to the complexities and particularities of the deep diversity that characterizes substate national societies in the United States, and how to approach the problem of linguistic and cultural diversity from their perspective.

The Bill of Rights, antidiscrimination law and nation building in the United States

The conventional wisdom is that the original Bill of Rights of 1789 – the first 10 Amendments to the 1787 Constitution – vests individuals and minorities with substantive rights against majorities and ignores the issue of the protection of the people against self-interested government. Akhil Amar argues, however, that in the original Bill of Rights what was foremost in the minds of the framers was the concern with protection of the people against a self-interested government. ‘The essence of the Bill of Rights was more structural than not, and more majoritarian than counter’.Footnote ⁹¹ For example, Amar shows with respect to the First Amendment that, before Reconstruction, the Amendment’s historical and structural core was to safeguard the rights of popular majorities against a possibly unrepresentative and self-interested Congress. Thus, when any of the first 10 amendments referred to ‘the people’, this implies a core collective right or a popular right, ‘echoing the Preamble’s commitment to the ultimate sovereignty of “We the People of the United States.”’Footnote ⁹² The Reconstruction Amendment transformed the nature of the original Bill of Rights, bequeathing to us something much more akin to what is understood at present. With respect to whether the 14th Amendment ‘incorporates’ the Bill of Rights against the states, Amar adopts a ‘refined incorporation’ approach, which is a synthesis of the heretofore principal approaches (‘total incorporation’, ‘selective incorporation’ and ‘fundamental fairness’ doctrine). The 14th Amendment altered the trajectory of the original Bill of Rights. Thus, ‘certain provisions may become less majoritarian and populist, and more libertarian, as they are repackaged in the 14th Amendment as liberal civil rights – “privileges or immunities” of individuals – rather than republican political “right[s] of the people,” as in the original Bill’.Footnote ⁹³ Incorporation must be considered right by right, and clause by clause. The correct question to ask with respect to each right is whether the provision guarantees a privilege or immunity of individual citizens, rather than a right of all the states or the public at large.

Amar’s argument is that the 1789 Bill

For our purposes, we should underscore the fact that whether we view the original Bill of Rights – with its civic republican overtones – or we are viewing these rights transformed by the 14th Amendment – with its liberal, individualistic hues – the political effect of the Bill of Rights is that it had a nationalizing, homogenizing, pan-United States impact. The 14th Amendment’s due process clause ‘became the major vehicle for that nationalization of individual rights; and that Amendment looks to implementation of the new guarantees through the mechanism of a national Supreme Court and Congress’.Footnote ⁹⁵ Thus, both the vision of rights of the 1789 Bill and the vision of rights of the 1868 Amendment had a nationalizing, homogenizing impact on the U.S. polity. A Bill of Rights can be a subtle centralizing force in a federation if it supplies a set of uniform national standards for the protection of civil liberties and political rights.Footnote ⁹⁶ Political scientists Knopff and Morton state that the ‘American experience with their Bill of Rights, after it was applied to the states through the 14th Amendment, appears to corroborate the idea that an entrenched charter can serve a nation-building purpose’.Footnote ⁹⁷ Moreover, ‘the nation building potential of the U.S. Bill of Rights dates only from the Civil War’ and its centralizing effect would have been impossible prior to the 14th Amendment.Footnote ⁹⁸ Thus, the Bill of Rights, especially after 1868 (and even more so in the second half of the 20th century), promotes a conception of nationhood in the United States that is centralizing and homogenizing. It derives also from a territorial conception of federalism in the United States, embodying the notion of a national federation, inimical to its antithesis: a multinational federation. In the end, this is not a conception of nationhood and citizenship that encourages the recognition and acceptance of substate national societies in the United States.

I recognize that this is a somewhat paradoxical position to take. On the one hand, through the 14th Amendment and its nationalizing influence, in the second half of the 20th century, African Americans were finally able to claim their rights to equal citizenship. I am not advocating here a reactionary yearning for the status quo ante, of course. Simply, I wish to make the observation that the original Bill and, especially the 1868 Amendment, have promoted a pan-U.S. nationalizing effect – just as is the case with the Canadian charter – and this may actually have the paradoxical effect of making it more difficult for stateless nations to pursue their claim for formal recognition of their status as a distinct society, with a right to the preservation of their linguistic and cultural distinctiveness.

By the 1960s, the jurisprudence under the ‘EPC’ of the 14th Amendment had established the doctrine that ‘race’ was a ‘suspect classification’ subject to strict scrutiny. The Warren Court developed a two-tier theory of equal protection (‘suspect classifications’ and ‘fundamental rights or interests’). The Burger Court added an intermediate level, but did not abandon the general approach.

As one commentator has noted, ‘race has been the American interpretive exemplar of a suspect classification because of our history and experience’.Footnote ¹⁰⁰

Courts have so far been unwilling to deem language minorities a quasi-suspect class for equal protection analysis when parties claim an affirmative right to governmental accommodation.Footnote ¹⁰¹ ‘However, courts have not yet confronted the question whether a language-based classification, such as a blanket Official English declaration, may be employed to force a withdrawal of existing services’.Footnote ¹⁰² Some commentators have argued that an argument can be made for treating language minorities as a quasi-suspect class. Courts inquire into whether the group affected by a classification is an easily identifiable group that has suffered a history of discrimination, mistreatment or political powerlessness. Language minorities clearly are such groups.Footnote ¹⁰³ An additional indication of suspectness is the immutability of the characteristics forming the basis of the discrimination. In practice, ‘language might well be an immutable characteristic like skin color, sex, or place of birth’.Footnote ¹⁰⁴ Thus, a court may reasonably find that non-English speaking people do form ‘discrete and insular minorities’ who cannot depend on ‘the operation of those political processes ordinarily to be relied upon to protect minorities’, in the famous words of Carolene Products.Footnote ¹⁰⁵ If courts do recognize language minorities as a quasi-suspect class, the EPC will be able to protect immigrant language minorities from discriminatory classifications, but will still be inadequate to address the claim for collective rights and recognition of substate demoi. The latter make very distinctive claims, which are nation-like in nature, and their claim for equality is at the level of the ‘nation’, not at the level of individuals. Stateless nations’ claim is, indeed, that they are differently situated – but as a people and as a ‘nation’ – vis-à-vis the larger society that they are part of. The individual-rights approach of EPC analysis is unlikely to meet their collective needs. Their aspirations need to be addressed, rather, by creative and expansive formulas of federalism or autonomism that recognize their status as constituent, distinct societies within a larger polity.

With respect to federal antidiscrimination statutes, preliminarily, we should first note that the

As Juan Perea writes,

With respect to Latinos/as, for example, ‘viewing Latinos/as as aspiring immigrants is, in most cases, a deeply flawed view, for two reasons. First, Mexican Americans, Puerto Ricans, and United States- born Cuban Americans, are not immigrants. Mexicans occupied the Southwest long before the United States ever found them’.Footnote ¹⁰⁸

With respect to Puerto Rico vis-à-vis racial and ethnic minorities in the United States, these two historical experiences should not be conflated. ‘Racial oppression and colonization are not the same thing, and neither are the solutions they call for’.Footnote ¹⁰⁹ It is encouraging to see that there is an emerging countercurrent in the legal academy that is starting to open up discussion about race and ethnicity in the United States in ways that may facilitate serious consideration of the needs and aspirations of substate national societies in the United States.

The principal federal antidiscrimination statutes include the Reconstruction Era Civil Rights Legislation (42 U.S.C. Sections 1981 and 1983), Title VII of the Civil Rights Act of 1964 (42 U.S.C. Section 2000e et seq.), Title VI of the latter, the Equal Pay Act of 1963, Title IX of the Educational Amendments of 1972 and the Immigration and Reform Control Act of 1986 (8 U.S.C. Section 1324B).Footnote ¹¹⁰ We will focus on Title VII, which makes it unlawful for public and private employers, labor organizations and employment agencies, to discriminate against applicants and employees on the basis of their race, color, sex, religion and national origin.

The legislative history of Title VII shows that the term ‘ “national origin” means national. It means the country from which your forebears came. You may be from Poland, Czechoslovakia, England, France, or any other country’ 110 Cong. Rec. 2549 (1964). The Equal Employment Opportunity Commission has adopted an expansive definition of national origin discrimination: it includes the ‘denial of equal employment opportunity because of an individual’s, or his or her ancestor’s, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group’ 29 C.F.R. Section 1606.1 (2025). Yet, with respect to language discrimination,

Subsequent cases involving language restrictions in the 9th Circuit have refused to follow Gutierrez. For example, the court in Garcia v. Spun Steak Co., 998 F. 2d 1480 (9th Cir. 1993) held that the ‘bilingual employees have not made out a prima facie case and that Spun Steak has not violated Title VII in adopting an English-only rule as to them’. Thus, ‘most courts that have considered the question have concluded that Title VII does not protect bilingual employees from discrimination because of their non-English primary languages’.Footnote ¹¹⁴ In Soberal-Pérez v. Heckler, 717 F.2d 36 (2nd Cir. 1983), the second circuit affirmed the dismissal of a complaint brought by Hispanic plaintiffs challenging the failure of the Secretary of Health and Human Services to provide forms and oral services in Spanish for Social Security and Supplemental Security Income benefits. The court held that Title VII of the Civil Rights Act does not apply to direct federal benefit programs (like Social Security). Addressing the Equal Protection claim, the court found the classification was based on language (English speaking vs. non-English speaking), not national origin, and language alone does not identify a suspect class.

If non-English language use is one of the distinguishing characteristics of substate demoi who exhibit deep diversity traits, then it follows that Title VII ‘national origin’ jurisprudence is providing very little protection to language minorities. In fact, the ‘lack of specific protection of ethnic traits in Title VII encourages courts to reinforce a longstanding and underinclusive normative conception of American identity and traits’.Footnote ¹¹⁵ It is not inconceivable, however, that future court decisions may side more with Gutierrez than with Spun Steak, and may provide protection under Title VII for language minorities, due to the fact that they exhibit the ‘linguistic characteristics of a national origin group’. As in the case of EPC analysis, however, protection would then be afforded to immigrant language minorities against discriminatory employer practices. I maintain that Title VII, and other such statutes, are not likely to suitably address the unique identity and deep diversity claims of substate demoi. Again, the latter make nation-like claims that have to do with equality between societies, not between individuals. Of course, it would be a step forward if EPC jurisprudence and Title VII decisions were to move in the direction of affording individual protection to individual members of a substate demos when they move from the area where they constitute a regional language majority to any place in the rest of the United States. It would be comforting to know that as individuals they would be protected against discriminatory treatment on the basis of language. Yet, antidiscrimination law is clearly ill-suited to address the nation-like claims of substate national societies, such as Puerto Rico.

Only creative tinkering with constitutional strategies of territorial pluralism may be able to accommodate the nation-like claims of such groups in the United States. However, as we have noted above, the political culture in the United States and the predominant conception of federalism have not been hospitable to national minorities. To cite the case of Puerto Rico, it should be noted that the ‘Commonwealth of Puerto Rico’ has tried on at least three different occasions to acquire new powers and elements of increased autonomy within the U.S. conception of federalism. In 1953, a bill was filed to clarify essential elements of the relationship inaugurated the previous year. In 1959, the Fernos-Murray Bill was proposed by the Resident Commissioner to adopt ‘New Articles of Association’, and in 1975, a bill was proposed by the Resident Commissioner to adopt a ‘New Compact’ between the United States and Puerto Rico. All of these attempts ‘came to naught because of opposition within various branches of the U.S. government’.Footnote ¹¹⁶ In 1989–1990, a process was initiated in Congress that would have led, for the first time since 1898, to a Congress-sponsored plebiscite on political options in Puerto Rico. This project died in Congress for several reasons, but especially because of opposition based on issues of language and nationhood, and the astronomical cost of federalism (‘statehood’), if that option were to win.Footnote ¹¹⁷ More recently, Congressional efforts to look for a solution for Puerto Rico’s status quagmire have focused on proposed legislation for binding self-determination referendums to choose between federalism, independence or free association, trying to exclude the current colonial status. An important recent effort was the Puerto Rico Status Act (H.R. 8393), which passed the House in 2022 but became stuck in the Senate, and also the Puerto Rico Self-Determination Act of 2021.

Thus, in the United States, substate national societies such as Puerto Rico are in an especially precarious position, since the dominant conception of federalism is not hospitable to their political aspirations, and antidiscrimination law – and individual rights approaches in general – are unlikely to be adequate to address the nation-like claims of these groups.