This past week, John Oliver had a segment on US territories that’s gotten a lot of press. He talks a bit about the history of the current set of US territories and also some of the drawbacks to living there. It’s good to get more people to hear about life in the US but outside the fifty states and DC, but I would take issue with the large focus on voting rights in the piece.
Oliver chooses to point to the insular cases (a group of Supreme Court cases from the early 1900s) as setting up a territorial legal regime based in large part on racial/cultural/religious animus against the people living in the territories. There is a lot of truth to that, but the piece seemingly conflates this with voting rights, when that really isn’t true. People in territories don’t have representation in the federal government because the Constitution sets up Congress and the presidency as representing the states rather than the individual citizens. The president is elected by the electoral college which is in turn elected by the people. Members of Congress (both houses since the 17th amendment was passed) are elected by the people of each state rather than by the people of the United States as a whole. Non-state territories don’t really fit in, so any representation would require Constitutional amendments, as was done to give DC its three presidential electors. Regardless of any bigotry directed toward people in US territories, the lack of voting rights is a deliberate feature of the Constitution and is not something that is easily changed.
Furthermore, while I understand Oliver’s point about Justice Sotomayor and her family being Americans all along and not immigrants, the truth is more nuanced than that. Puerto Rico was (and still isn’t) really the same as just another US state. People in Puerto Rico weren’t granted citizenship until 1917 and a normal republican government along the lines of the state governments wasn’t allowed until the 1950s. The Puerto Rico where Sotomayor’s parents grew up would not have been recognizable as just another part of America. Instead, it would be better understood as a foreign country ruled by Americans for the benefit of the mainland US and not the actual people on the island. Fortunately, the political situation has improved enormously from those days, even if things aren’t exactly perfect right now. Additionally, while Sotomayor’s parents were born US citizens (if her Wikipedia page is accurate), their actual experiences in the mainland would have been those of immigrants rather than American citizens. They would have been treated as foreigners in what was technically their own country.
There are plenty of other things than voting rights to talk about if you want to focus on poor treatment of territorial residents at the hands of the rest of the country. Oliver even touches on some of them – lack of government support and government funds, weird nationality status that’s at odds with what most people think about nationality and citizenship, etc. The insular cases that Oliver mentions weren’t even about voting rights. They were about what rights, if any, residents of newly-acquired territories had. Unfortunately, the answer in many cases was that these residents had no real civil rights unless they either moved to the mainland (after one of the cases declared that the US couldn’t keep them out) or unless the rest of the country decided they could be allowed to have rights. The insular cases led to the creation of things like the “US national” status (i.e. second-class citizen) and also gave support to exploitative colonial governmental systems that ruled the territories throughout much of the 20th century. As far as I am aware, the insular cases have never been overturned, so even the rights and privileges of citizenship that nearly all the territorial citizens (except American Samoa) currently enjoy are not Constitutional rights but rather are rights granted by the federal government, which retains the ability to revoke these rights whenever it wants.