By Howard Hills
Honoring Veterans with Truth
The Governor of Guam, Eddie Calvo, recently sent a letter to President Trump requesting that U.S. military veterans in Guam be given the same federal voting rights as Americans in the States of the Union.
In doing so the Governor did not make it clear if this was just a symbolic gesture, or if he really believes the president or even Congress and the federal courts can simply extend federal voting rights under the U.S. Constitution outside a state, for persons born in a U.S. territory.
If the latter he may not be getting fully accurate historical and constitutional background information from his advisers. If instead the Governor seeks to illustrate and arouse sympathy for the veterans and other U.S. nationals and citizens in territories who can’t vote in federal elections, then in a real sense it creates confusion about the legal, political and moral context for honoring the sacrifice of veterans.
For example, basic civil literacy requires us to acknowledge that Revolutionary War veterans who moved west into the territories didn’t have federal voting rights. That’s why veterans in Tennessee and Ohio territories supported statehood.
Same for vets after the War of 1812, Mexican American War, and Civil War who went west, followed by Spanish American War vets who couldn’t vote in Oklahoma, New Mexico or Arizona before statehood. WWI and WWII vets in Alaska and Hawaii couldn’t vote until 1959.
Veterans Defend Constitutional Union, Not Territorial Status
U.S. military veterans who are not both U.S. citizens and citizens eligible to vote in a state do not vote in federal elections. That’s because America’s constitution is a shared sovereignty pact between federal and state government. To preserve the union, federal voting rights of U.S. national citizens can be exercised only by citizens eligible to vote in state.
That’s why 32 territories have become states, the people of four states formed new states from within existing states, and one U.S. citizen populated republic petitioned for admission as a new state. The last five remaining territories can seek to form new states or seek integration into existing states to secure fully equal rights of U.S. national and state citizenship.
Territories Are Not Equal To States
Ending the current territorial regimes created by Congress under federal law is politically more realistic than giving the rights of statehood as it currently exists under the U.S. Constitution to citizens without a state. Indeed, under the 1787 and 1789 versions of the Northwest Ordinance defined territory status and governments formed under territorial organic acts as “temporary.”
Federal voting rights are allocated only to states with permanent status in the union. Even territories permanently incorporated into the union during transition to statehood were denied federal voting rights.
Territories classified as “unincorporated” under federal territorial law are in a constitutionally temporary status. U.S. nationals in unincorporated territories can be classified by Congress as “citizens,” but without state citizenship are not fully equal to citizens of states to which federal voting rights are exclusively allocated by the U.S. Constitution.
America is a federation of states, not of states and territories. Consent of the governed is given by representation based on majority vote in each state, not a national popular majority vote.
That’s the constitutional model of freedom under law our veterans – including our patriotic fellow Americans from the territories – proudly serve to defend. Throughout our nations history Americans in the territories who aspired to secure the full rights of both U.S. national citizenship and state citizenship worked to end territory status through incorporation leading to statehood.
Freedom Includes Nationhood
Our nation’s history also includes U.S. nationals and non-citizens in the territory of the Philippines who fought in a war for independence under Spanish and U.S. rule, and then joined the U.S. military or as civilians supported the U.S. war effort while under Japanese occupation in WWII. After liberation of the Philippines, the U.S. finally kept its 1916 promise that territory status would be temporary. The military veterans of the Philippines never secured federal voting rights, but achieved equal national citizenship under sovereign and independent nationhood for that former territory.
Similarly, the U.S. governed non-citizen populations of the United Nations Trust Territory of the Pacific Islands never had federal voting rights or a political status with civil rights equal to those of U.S. nationals and citizens in the U.S. territories. But before and after forming sovereign nations with free association treaties, citizens of Palau, the Marshall Islands and Micronesia served in the U.S. military and as veterans deserve our gratitude and respect.
However, it does not honor their service to declare its value and meaning diminished somehow because the citizens of those former territories that chose nationhood do not have the rights of U.S. national and state citizenship under our nation’s own Constitution.
That is even more true and especially important for U.S. nationals and citizens governed by the U.S. in our last five unincorporated territories that like Guam have realistic choices to attain a permanent and fully democratic status through nationhood or free association if statehood is not attained based on democratic self-determination through the constitutional process at the local and national levels.
This matrix of self-determination rights is the order of liberty and freedom that today’s veterans in Guam, the other territories and free associated states fought to defend and preserve. Let us truly honor it by being honest about it.
Unless the Governor of Guam wants to propose an Amendment under Article V of the U.S. Constitution to make territorial status permanent and give U.S. citizens in territories the same voting rights as citizens in states, he should honor veterans for serving to defend the U.S. Constitution, even though it does not secure some of the freedoms they fight to defend.
As one of the fabled Tuskegee Airmen observed, there is no greater love of country or of freedom than to fight for the freedom of other citizens and even people of other nations not yet secured for those who serve and defend our country and its Constitution.
That is perhaps the noblest way that Americans – especially those denied equality – show our true character by working and struggling and fighting to make our union more perfect. It is work that will never be completed, but preservation of its possibility to succeed must always be our highest purpose.
Incorporation Without Statehood More Colonial Than Unincorporated Territory Status
We should never trivialize the vital and sacred meaning of the American idea by pretending it can be made more perfect by gimmicks, tricks, legal fabrications or political stunts.
Those who died or suffered and sacrificed to preserve the U.S. Constitution are honored by doing the real work of democracy, not asking a federal court or Congress to pretend territories have the same status and rights as states when that is not true.
For example, the Governor of Guam may have gotten the idea to demand a vote for veterans in Guam from lawyers for a lobbyist fundraising consortium previously operating as a non-profit named “We The People” and more recently “Equally American.”
This lobbying and fundraising project pays its lobbyists to bring federal lawsuits seeking judicial imposition in the territories of the same U.S. citizenship and rights conferred by the U.S. Constitution for persons born in the States of the Union. This would have the perverse effect of giving all people born in all U.S. territories and possessions governed under federal territorial statutes the same permanent rights and status as citizens of the States.
The idea that a federal court can with a judicial edict and without self-determination decide the future of the people of the territories is anti-democratic. Applying the combined national and state citizenship clause in Section 1 of the 14th Amendment would in effect incorporate the territories into the union without a promise of statehood.
That would make territorial status without equal rights a permanent status for the first time in American history. It would mean a constitutional amendment would be required even to give citizens in territories the same rights as citizens in the District of Columbia.
Of course, the 23rd Amendment giving the electoral college vote to D.C. without apportionment to population failed to fully or equally democratize the capital city. Indeed, it is based on the same fractional or partial definition of a citizen as the original Constitution’s infamous 3/5ths clause for apportionment of representation based on the slave population in each state where slavery was legal.
Incorporation by judicial order or even Congressional act without a commitment to statehood based on self-determination would take away the freedom of the people in the territories to choose statehood or nationhood in America’s ever more perfect but still evolving anti-colonial traditions. Without a promise of statehood based on democratic choice, incarnation is institutionalized colonialism in perpetuity.
Howard Hills is former counsel on territorial status affairs in the Executive Office of the President, National Security Council and U.S. State Department, and author of Citizens Without A State