Former U.S. National Security Council and State Department legal counsel Howard Hills says, “It is long overdue for each U.S. territory to stop obsessing over vestigial court rulings about territorial status, and find a path forward in federal relations through local self-determination. Territories should stop following pied pipers of pan-territorial ideological abstraction demanding small territories become mini-states with the same voting rights as states of the union.”
To change the narrative that territory status is permanent and therefore must demand the same rights as states, in discussing his recent essay on the Insular Cases, Hills argues “Territorial status was never considered permanent, so if we want it to become permanent what does that mean? Unless the Constitution is amended the claim of federal voting rights for territories equal to states is a counter-constitutional fallacy and political hoax. It gives me no pleasure to say that, but we can’t pretend about something so important.”
According to Hills, Americans in each territory should reject the incorporated/unincorporated territory dichotomy and manage the constitutionally temporary political condition of territorial status based on self-determination. That means remain a territory and live within the limits of that status until the people make a decision for full integration into the union or separate nationhood, and petition Congress accordingly.
Hills promotes recognition that “The gold standard of equality and liberty under the U.S. Constitution is state-based voting rights. Allocation of voting rights to states – based on both apportionment to population and equal state sovereignty subject to federal supremacy – is the model of government by consent we take oaths to uphold and our military fights to defend.”
As a military veteran who was a civilian resident of Guam when commissioned to serve on active duty for 8 years in the U.S. Navy, Hills says, “I did not seek voting rights in the territory that are constitutionally restricted to citizens in a state. How can veterans support and defend the U.S. Constitution then seek a court edict to override separation of powers and checks and balances that sustain our freedom by altering the state based voting rights?”
If that is to be done, he notes, it must be by a constitutional amendment under Article V, not an action by Congress under Article I, the President under Article II, or the Judiciary under Article III, taking voting rights away from the states, or creating a class of citizens with federal voting rights not based on state citizenship. “The 23rd Amendment giving limited federal voting rights to DC residents is a failure because it is based on the contradiction of ‘partial equality’ or ‘fractional citizenship rights’ evoking the anti-democratic logic of the 3/5th’s clause in the original text of Article I, Section 2.”
Hills urges Americans in the territories to read the words of Section 1 in the 14th Amendment defining U.S. national citizenship, but linking it to state citizenship rights. “It is not a national citizenship clause, but rather a combined national and state citizenship clause.”
“All Americans have a right to bring any court action they want, even if they get talked into lending their name to fake cases. But delinking equal voting rights from statehood is a fatally flawed ideological obsession that ignores the history and meaning of the American system of constitutional federalism.”