Territorial Status Not “Equally American”

Editors Note: This article reports that Neal Weare of “We The People Project” changed its name to “Equally American.” Subsequently, Weare’s renamed lobbying organization filed a new lawsuit seeking rights of statehood for the territories. An analysis of that lawsuit’s merits by PR51ST is forthcoming.

The nonprofit territorial rights lobbying and litigation organization known as “We the People Project” is changing its marketing brand. WTPP founder Neil Weare announced the fundraising operation’s new name will be “Equally American.”  As aspirational sloganeering that new rallying cry certainly defines the goal, but not the path to reach it.

For Puerto Rico, the only political status that would make the people “equally American” is statehood. The smaller territories are in the same predicament as the District of Columbia, where “state like” treatment and even a constitutional amendment giving residents voting representation in one branch of government has failed generations of citizens aspiring to be “Equally American.”

Still, a name change and new marketing platform may be a smart move. At a minimum it shifts the focus away from WTPP’s unbroken record losing every federal court case engineered by Weare and funded by donations from all five U.S. territories.

Weare fell far short of his goal of a ruling by the U.S. Supreme Court making U.S. citizens in the territories “Equally American” compared to citizens in the states. But after losing every federal court case he is still espousing hopeful aspirations to somehow end denial of equal rights for residents of federal reservations governed under federal territorial law.

The new name actually reveals the fundamental disconnect between citizenship and equal rights in any U.S. ruled territory not within a state. While U.S. nationals and citizens in the territories can be respected and accorded the dignity of being recognized as “Equally American” in creed and character, that does not change the fact that they do not have equal rights of U.S. national citizenship when they are residing in a territory.

That is because U.S. nationality and citizenship are conferred by Congress under territorial law, not by application of the U.S. Constitution in territories outside the states. Similarly, under the U.S. Constitution voting in federal elections is a right of citizenship and eligibility to vote in a state.

Seeking rights in the territories that only exist under the U.S. Constitution for citizens residing and eligible to vote in a state of the union can perhaps lead to federal policies making territories “more equally” American, but never “fully equal” to Americans in the states.  So the only real path to being “Equally American” in rights for all territories is statehood or integration into a state.

The only other alternative is to propose an amendment to the Constitution to make national citizenship, voting in federal elections and equal representation in Congress and the Electoral College a right not linked to state citizenship. Weare promised a proposed constitutional amendment after losing all his court cases, but like other hopes he aroused his donors and followers are still waiting for a draft amendment that would not suffer the same fate as his litigation tactics.

Weare is becoming the Gregorio Igartua of Guam, referring to Puerto Rico’s perennial advocate for federal voting rights in territories whose failed litigation projects arguably confused the real issues in the struggle for equality.

It is not at all clear how a territorial citizenship equality amendment would work in our federation of states without preserving constitutionally guaranteed future acquisition of national citizenship based on birth in a state. Even more importantly, “Equally American” under Articles I and II of the U.S. Constitution means consent of the governed based in part on population-determined apportionment of representation in the organs of government among states, a result untenable for small territories.

That is why there is no outcome other than statehood that delivers on the promise of full equality for residents of territories who are U.S. nationals and/or citizens.  This is a lesson Washington D.C. has learned only too well, and too late after false expectations were created by people like Weare.

Weare recently asserted “Hurricanes Maria and Irma and North Korea’s nuclear threats to Guam create an unprecedented opportunity to make the case that it is time to treat the 4 million citizens living in U.S. territories as ‘Equally American.’”  That sound bite logic ignores the reality that true equality must be defined by vested, inalienable rights under the U.S. Constitution rather than permission granted by Congress under federal territorial statutes.

Democratic Self Determination Means Just That

The ultimate arbiter of the fate of each territory has to be a free and informed act of self-determination. But it must be clear that choosing to remain in an undemocratic status does not create a permanent status or vested rights, much less an “Equally American” status.

For the U.S. territories the choices for ending territorial status are statehood or nationhood (with or without a treaty of “free association”). If Congress could give equal rights of national citizenship to citizens in the territories, there would be no reason to become a state, a free associated state or a nation. Why bother if you can have equal rights without equal duties and burdens?

The truth is Congress and the federal courts do not have the power to make residents of a territory “Equally American” with residents of the states. Indeed, in addition to statehood, only nationhood with or without free association ends the less than “Equally American” status of all nationals/citizens in the territories.

An amendment to give DC and the territories full representation in the Electoral College and Congress without statehood is not politically realistic. Integrating all six into existing states would require agreement of the existing state(s) concerned, also defying norms of political realism.

But ironically it may be that the biggest obstacle in some small territories to being “Equally American” is that this goal can be pursued only if based on self-determination of each territory. Giving up the vested political interests and allocation of local powers under the status quo is a decision each territory may respond to differently, rather than with collective uniformity.

And, finally, even if majorities in one or more territory voted for equal status under the U.S. flag, the U.S. has the same right of self-determination as the territories regarding any status option as it relates to the U.S. as a constitutional federation.

Local territorial regimes may resist empowerment and enfranchisement of citizens at the national level if it means a loss of local order of political power under territorial regimes. But even if there is agreement on an “Equally American” status model, in the end it will resolve itself into a quest for statehood, because giving territories the rights and benefits of statehood without the duties and burdens is not realistic, nor would it be right.

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