By Howard Hills
- Federal court rulings defined territories with non-citizen populations as “unincorporated,” but U.S. citizens in “incorporated” territories also were denied federal voting rights until admitted as states.
- Denial of equal federal voting right to U.S. territories not subject to Insular Cases demonstrates the “unincorporated territory” doctrine of the Insular Cases is not the source of federal law denying full federal voting rights in U.S. territories.
- Incorporation is the path to statehood or integration into an existing state, because that is the permanent future status securing equal federal voting rights under the U.S. Constitution.
- Thus, U.S. citizens in the unincorporated territories who seek equal federal voting rights are actually advocating incorporation as the first step toward possible equal citizenship rights in the future.
- Integration into the statehood model is the only road to full citizenship, which means seeking the rights of the statehood model without statehood is a dead end.
- State based government by consent has held our nation together for over 230 years.
- Federal voting rights based on U.S. national citizenship without state citizenship would deconstruct federalism and lead to consent of the governed by national popular majority, wisely rejected by Madison, Jefferson and Hamilton.
- The U.S. is a union of states, a federation in which states are on an equal footing, not a confederation of states and territories with non-conforming political status features and non-uniform rights and duties.
- U.S. citizens in territories who want to retain that status and remain within America need to defend America as it is, not claim rights and privileges that the U.S. Constitution confers only on citizens of both the nation and a state.
- U.S. citizens in the territories are not excluded from the national political process, they exclude themselves by not using rights possessed as provisional citizens to seek full integration and equal citizenship in the future.
Voting in federal elections is a right of U.S. national citizenship only when combined with citizenship and voting rights in a state
Federal law allows U.S. citizens who previously were registered to vote in a state but now reside in a foreign nation to vote in U.S. federal elections by lawfully casting an absentee ballot in the state where previously a legal resident registered and eligible to vote. That federal overseas voting law does not apply to persons with U.S. citizenship who previously were eligible to vote in a state, but relocate and become legal residents in one of five remaining U.S. territories not yet admitted into permanent political union with America as a state or part of an existing state.
Denial of federal voting rights in the last five U.S. territories is not a constitutionally impermissible form of institutionalized discrimination against U.S. citizens who live in a territory under U.S. sovereign rule but outside the 50 states of the union. Rather, limitation of federal voting rights to citizens eligible to vote in a state is by definition constitutional because it is mandated by the U.S. Constitution itself.
Specifically, Article I, Section 2 of the U.S. Constitution limits the right of U.S. citizens to vote for representation in the U.S. Congress to citizens residing and eligible to vote in a state. Representation in Congress includes 2 voting members of the U.S. Senate for each state, and a fixed number of voting members in the U.S. House of Representatives allocated among the states based on the number of citizens residing and eligible to vote in each state.
Similarly, the same combination of equal state-by-state representation and allocation of representation based on state population is repeated in the composition of the Electoral College that chooses the President of the United States under Article II, Section 1 of the U.S. Constitution. Each state votes by majority rule for 2 representatives in the Electoral College, and states also elect the same fixed number of additional representatives in the Electoral College based on size of state population as the number of representatives for each state in the House of Representatives.
That is how the principle of government by consent of the governed expressed in the Declaration of Independence is given effect in the union of states comprising the America system of federalism under the U.S. Constitution. Consistent with the success of this system for equal state-by-state representation combined with additional representation based on state population, federal elections in the U.S. are not decided by a national popular majority vote, and U.S. national citizenship alone does not secure a right to vote in federal elections.
Rather, federal elections are decided and consent of the governed is given first by a majority vote in each state, and then by representation of each state in the federal political and legal process. Thus, for all U.S. citizens the right to vote in federal elections for representation in Congress or the Electoral College can be secured and exercised only through legal residence and eligibility to vote under the constitution and laws of a state.
U.S. citizens in territories are equally American in national values, but do not have the same citizenship and federal voting rights as Americans in the states
The fundraising and lobbying project “Equally American” has solicited donations in the U.S. territories based on a fatally flaws argument. Self-appointed “President” of Equally American, Neal Weare, asserts that “racist” federal court decisions known as the “Insular Cases” are the source of federal law denying voting rights in federal election to U.S. citizens in five American island territories.
That is historically, constitutionally and legally untrue. The Insular Cases did not apply to territories populated by U.S. citizens. Rather, the ruling of the U.S. Supreme Court in the 1901 case of Downes v. Bidwell – as well as other rulings in the Insular Cases line of high court decisions – applied only to territories populated by former citizens of Spain who were not U.S. citizens.
In the Downes case the court ruled that these territories in which Congress had not granted birthright or naturalized U.S. citizenship under federal territorial law statutes were not yet “incorporated” into the union. In contrast, in other territories previously acquired from and populated by citizens of foreign nations, conferral of U.S. citizenship by act of Congress was held by the high court to “incorporate” such territories into the union, as the first step toward statehood.
The doctrine of incorporation based on the decision by Congress to grant U.S. citizenship included territories acquired under the Louisiana Purchase and later forming all or part of 15 states. Alaska and Hawaii also were classified as “incorporated” due to conferral of U.S. citizenship by federal territorial statutes.
In contrast, the treaty with Spain to acquire Puerto Rico, the Philippines and Guam was silent on citizenship, and provided only that the U.S. Congress would determine the “political status and civil rights” of the former Spanish national population. In the Insular Cases the court held that denial of citizenship meant the U.S Constitution did not apply directly by its own force, as it did in incorporated territories.
Instead, the court held in the Insular Cases that the U.S. had the power to acquire and rule foreign territory with non-citizen populations without automatically conferring U.S. citizenship or applying the U.S. Constitution as in incorporated territories on the path to statehood. Rather, the principles of due process and other constitutional standards would apply as determined by Congress and the courts.
In the 1904 case of Gonzales v. Williams the high court ruled that the non-citizens of all U.S. territories classified as unincorporated under the Insular Cases were not aliens for purposes of U.S. immigration law, but rather were persons under U.S. national protection. To this day that 1904 ruling and federal territorial statutes still mean those born in the unincorporated territories have U.S. nationality, with the status of “nationals.”
However, in 1922 the court’s ruling in Balzac v. Puerto Rico deviated from the legal precedent if the Insular Cases by applying the unincorporated territory doctrine to Puerto Rico even after Congress conferred U.S. citizenship there by statute in 1917. This meant that U.S. nationals in an unincorporated territory can be granted U.S. citizenship, but still be governed while residing in the territory in the same manner as non-citizens nationals in a territory where citizenship has not been conferred.
Since the 1922 Balzac case the U.S. Congress has classified the U.S. nationals of Puerto Rico, Guam, Northern Mariana Islands and U.S. Virgin Islands as “U.S. citizens.” The people of American Samoa have not requested reclassification as U.S. citizens because that does not alter their status and rights as nationals while residing in their homelands. That means citizens from the other four territories acquire equal citizenship rights when they step off the plane or boat onto U.S. soil in a state, but Americans Samoans need to apply for reclassification upon establishing residence in a state.
However, classification a “U.S. citizen” is a distinction without a difference for all nationals so denominated as long as residence is maintained in an unincorporated territory. Only upon moving to and acquiring residence with voting rights in a a state do nationals classified as “citizens” acquire the same rights as all U.S. citizens who also have citizenship in a state.
So the “Balzac citizenship” of U.S. nationals in Guam, NMI, Puerto Rico and Virgin Islands is not equivalent to the right of both national and state citizenship acquired by birth or naturalization in a state, under Section 1 of the 14th Amendment to the U.S. Constitution. Rather, citizenship under federal territorial statutes is “national-plus” status with equal rights redeemed only by leaving the territory and relocating to a state. The U.S. citizens in 32 territories that became states were able to bring the equal rights that come only with statehood to the territory. Balzac citizens must bring their national-plus status to a state to become real citizens with equal rights in the full sense of the words “citizen of the United States.”
Application of original Insular Cases only to non-citizens is a historical reality
The 1922 ruling of the U.S. Supreme Court in Balzac must be understood as a judicial edict that conferral of U.S. citizenship would no longer mean incorporation leading to equality that comes only with statehood. From 1789 when Congress adopted the Northwest Ordinance to 1922 when Balzac was handed down, citizenship and incorporation into the union under the Constitution leading to equality were deemed by the U.S Supreme Court, Congress, the White House and America to be inseparable.
Balzac was predicated on the arrogant notion the remedy for U.S. citizens who don’t like denial of federal voting rights in Puerto Rico is to move into a state. That is actually the anti-democratic and very un-American idea invoked by the Chief Justice who wrote that infamous ruling. And it is that ruling that created the problem of U.S. citizens in territories being in a limbo status without a path to statehood or nationhood.
The words of Chief Justice William Taft leave no room for speculation that the Balzac ruling constituted a formal federal law and policy imposing disenfranchisement of U.S. citizens, for which there was no remedy otters than relocation:
“It became a yearning of the Porto Ricans to be American citizens, therefore, and the act gave them the boon. What additional rights did it give them? It enabled them to move into the continental United States and becoming residents of any state there, to enjoy every right of any other citizen of the United States, civil, social and political.”
But Balzac also ruled that conferral of national citizenship did not constitute incorporation leading to statehood, thereby separating citizenship granted by statute from future full and equal citizenship under statehood So separation of citizenship from the U.S. Constitution as it applies in infuriated territories and eventual full equality is not attributable to the line of U.S. Supreme Court decisions know as the Insular Cases. That’s because those cases applied only temporarily to non-citizens who were former nationals of Spain, in the Philippines, Puerto Rico and Guam.
It was a transitional status, until Congress decided between denial of U.S. citizenship leading to independence, or in the alternative conferral of U.S. citizenship leading to incorporation under the U.S. Constitution and eventual full equality under statehood.
The linkage between non-citizenship and unincorporated territory status doctrine for the Philippines and Puerto Rico was important from the time Downes was decided in 1901 until 1916 when Congress decided to deny citizenship permanently and grant independence to the Philippines. But by the same logic the unincorporated territory status model should and would have ended for Puerto Rico in 1917 when Congress granted citizenship.
This is unmistakable from the opinion in Downes by Justice Brown, who wrote for the Court
“…in the case of Porto Rico and the Philippines, that ‘the civil rights and political status of the native inhabitants . . . shall be determined by Congress.’ In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”
Similarly, linkage between U.S. citizenship and incorporation under the Constitution leading to statehood was recognized in Justice White’s concurring opinion in the Downes case:
“…in acquiring territory, citizenship could be conferred upon the inhabitants within the acquired territory — in other words, that the territory could be incorporated into the United States… although the treaty might stipulate for incorporation and citizenship under the Constitution, such agreements…were but promises depending for their fulfillment on the future action of Congress…it was by the action of Congress, incorporated as a territory into the United States, and the same rights were conferred in the same mode by which other territories had previously been incorporated — that is, by bestowing the privileges of citizenship…”
Indeed, referring to the need to refrain from incorporation until Congress decided to confer citizenship under the Constitution leading to statehood, Justice White noted acquisition of new territory was a right of nations that,
“…could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States and…entail ruin on the discovered territory, and to inflict grave detriment on the United States, to arise…from the immediate bestowal of citizenship on those absolutely unfit to receive it…”
It may have been “racist” and “ imperialist” for White to argue that citizenship must not be conferred on those unfit and undeserving to possess it, but it is even more racist and imperialist to confer it in name only and make a mockery of citizenship by separating it from the U.S. Constitution. That is what Taft did in 1922.
It was Taft’s exuberant monopolizing of territorial law and his ruling in the Balzac case that enabled Congress to grant citizenship without a path to statehood, and to govern the U.S. citizens of Puerto Rico in the same manner as non-citizens in the Philippines before independent nationhood was attained in 1946.
The legacy of Balzac as a deviation from the Insular Cases that applied only to non-citizens includes denial of full federal voting rights to Puerto Rico to this date, and the requirement that U.S. citizens in Puerto Rico relocate to a state if they don’t like it. That is bad law and that bad law is the legacy of Balzac not only for Puerto Rico but all the territories.
It is clear U.S. territorial law and policy is inconsistent with the right of free travel and choice of residency under Art. VIII of the American Declaration. In reality, U.S. citizens in territories must relocate to a state from their homeland within the national borders of the U.S. in order to secure universal suffrage consistent with Art. XX of the American Declaration.
Whether by political or economic coercion, disruption of social cohesion and family culture to secure equal political rights or economic opportunity is reminiscent of the practices in totalitarian regimes, not the USA.
Yet, in Balzac v. Puerto Rico the U.S. Supreme Court held that being forced to relocate to the states for equal rights of citizenship granted by Congress in 1917 was a “boon” to the residents of Puerto Rico. Some may still harbor those or similarly imperious notions, but the 100,000 U.S. military veterans of Puerto Rico are among our fellow Americans in Puerto Rico who do not.
Howard Hills is former legal counsel for territorial affairs in the Executive Office of the President, National Security Council and U.S. State Department. He is author of “Citizens Without A State,” foreword by former U.S. Attorney General Thornburgh.