No Equality with States for Territories without Statehood

The Governor of Guam recently suggested that Guam’s veterans should be able to vote in presidential elections.    

 “Equally American” lobbyists called on carpet for exploiting false “equality” gimmicks

Two recent editorials, “Guam Veteran Vote Proposal Confuses” and “American Federation of States, not States and Territories,” refute the notion that U.S. territories can or should have the same U.S. citizenship and federal voting rights as the states of the union.

Discussion of this topic intensified after the Governor of Guam proposed federal voting rights for U.S. military veterans in that territory.

Guam’s non-voting Delegate in the U.S. House of Representatives is a strong supporters of veterans in Guam and nation-wide, but she quickly repudiated the Governor’s veterans-only vote gambit.

Congresswoman Madeleine Bordallo’s rapid response rejection of Governor Calvo’s proposal led the Governor’s spokesman to back-pedal vigorously away from that ill-advised political pandering.

Constitutional law and territorial history author Howard Hills (Citizens Without A State) commented, “Governor Calvo probably got the idea from Neal Weare, self-appointed President of the the Equally American lobbying project. It sounds just like Weare’s political stunt suing the U.S. to give the same citizenship rights that states have to the unincorporated territory of American Samoa.”

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The idea that veterans or any other class of U.S. nationals in the territories – whether labeled “citizens” under federal territorial laws or not – can have the same rights as citizens in the states is wrong. According to Hills, “The idea that territories can attain equivalency with states is being advocated in current federal court litigation by lawyers using less than fully democratic status of territories as a fund raising gimmick to sponsor their own legal careers.”

Hills is referring to a series of lawsuits – so far rejected by multiple federal courts after costly failed appeals by Weare. These lawsuits were brought by lawyers for the defunct “We The People” lobbying project, now operating under “Equally American” trademark adopted by the same lobbyists. Organized as a non-profit, “Equally American” is raising funds in the territories and nationwide in the name of “equality” and “voting rights” for U.S. citizens in the territories.

According to Hills, “Invoking a call for equality strikes a chord for all Americans, but it is an intentionally confused narrative to rake in bucks, not promote real political status solutions. A federal court can not create a new political status in the federal union that has the rights of statehood without statehood.”

More fundamentally, Hills argues that the idea of equality with statehood for territories without actual statehood is more broadly a variation of the discredited “enhanced commonwealth” ideology of the status quo political party in Puerto Rico. “The experiment in quasi-statehood combined with quasi-nationhood led to fiscal collapse of the ‘commonwealth’ regime of territorial government in Puerto Rico,” Hills notes. He adds, “And in 2016 the U.S. Supreme Court declared the idea that Puerto Rico acquired separate inherent sovereignty under ‘commonwealth’ a fallacy.”

Both houses of the U.S. Congress, the White House under all Presidents, and now the federal court of last resort have repudiated the idea that a territory can have the rights of citizens in the states without permanent incorporation into the union leading to equality through statehood. The idea that territories can have autonomy but not accountability, or, that “commonwealth” is a third path to avoid the choice between statehood or nationhood, is discredited historical revisionism leading to a political and constitutional dead end.

According to Hills, “The proposition that the U.S. Constitution applies in the territories with the same legal and political empowerment as in the states will always fail, as it should and as it must. Territories can seek statehood, integration into an existing state, nationhood, or remain a territory and seek improved federal relations within the limits of territorial status.”

It is now clear “Commonwealth” created under federal territorial law cannot be converted into “free association” as defined by the U.N. and the U.S. in compacts with sovereign Pacific island nations. Free association status is based on separate sovereignty, nationality and citizenship, and supremacy of a separate national constitution instead of the U.S. Constitution.

What Hills calls the “real work of true democratic self-determination” can lead from the temporary dilemma of territorial status to a permanent constitutionally defined status within the U.S. system of constitutional federalism, or to separate sovereign nationhood. Territorial “commonwealth” is a temporary status with limited local self-government as permitted by Congress, until a fully democratic status can be attained.

If Guam wants to keep U.S. citizenship that means the choices are continued territorial status without federal voting rights, statehood or integration into an existing state, or amendment of the U.S. Constitution to give territories the same voting rights as states, anything less will mean less than equal citizenship rights.

Hills asks, “Is Guam ready to do the real work democratization, or just talk about it? If territories can have the same rights as states, that is called statehood. If U.S. citizens who do not have voting rights in a state can vote in federal elections, why should states be represented by population in House of Representatives or the Electoral College that chooses the President?”

In the same rhetorical vein, Hills says, “Maybe the lawyers in Guam know more than the founders. Maybe that guy Neal Weare should be recognized as founder of a new republic in which all citizens should vote wherever they are in the world, even if they do not live in a state and have no state citizenship or voting rights under state law.”

For that matter, Hills asks, “Why not just get rid of states and let a national majority rule the nation, without the decentralized distribution of voting power to all regions of the nation through the states. Apportionment of voting power to states has been the genius of American federalism for more than two centuries, binding our nation together based on a combination of state and national sovereignty, but maybe Weare has come up with a better idea than Madison, Hamilton and Jefferson.”

Setting aside sarcasm Hills goes to the bottom line, “It is the epitome of political solipsism to think the U.S. should adapt our constitutional traditions to make self-determination easy for territories. It is the territories that need to decide how to adapt to our constitutional tradition by choosing between the status quo, nationhood or integration through statehood.”

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