November 5, 2015

BARELY LEGAL | The Constitutional Right to Remain Forgotten and Ignored

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By RUDOLF EFREMOV

To think that the United States of America has not achieved full democratic status because of its Constitution as interpreted by its federal courts should be absurd. It should be an unrealistic work of a science fiction writer, a failed paper by an undergraduate or a ludicrous article by a conspiracy theorist.

Yet, if you live in the District of Columbia or in the U.S. territories (Guam, Puerto Rico, the U.S. Virgin Islands, the Northern Mariana Islands or American Samoa), even if you are an American citizen, you don’t have the right to vote. One should note that the people in American Samoa are not even citizens — they are “nationals,” as if just withholding the right to vote from them isn’t degrading enough. In 2016, from these six territories comprising of roughly five million people, only the residents of D.C. can vote for President. Citizens in the District of Columbia acquired that right in 1973.

People residing in these territories cannot vote for a representative in the Senate. Some can vote for a delegate in the House of Representatives, but those delegates have no vote in Congress. In order to insure that the USA does not become a fully developed democracy, local government is supervised by Congress on any subject or matter. Incidentally, that is why the residents of Washington D.C. have license plates bearing the saying “Taxation Without Representation” — they can almost literally do nothing more than express political views through bumper stickers and hope for the best.

Why is this an issue? I mean, besides the fact that the United States Supreme Court said in Wesberry v. Sanders that without the right to vote, “[o]ther rights, even the most basic, are illusory.” Besides the fact that Congress or the President can pass acts that are legally binding upon the citizens in those territories, the right to vote is the ability to express your consent to be governed.

When you go to war, you might want to be able to have a say in it. The people in the United States territories cannot even elect their commander-in-chief. Despite this, a high percentage responded to their country’s call to arms and are now Afghanistan veterans.

Another consequence of residents’ inability to vote is that Congress passes experimental legislation in the District of Columbia. Don’t know if something will work? Try it out in D.C.! Furthermore, even if local government in these territories decides something, it has to wait at least a disproportionate amount of time before Congress validates it.

Why has this issue not been resolved? Because politicians have refused potential resolutions. This issue is more than a century old, and propositions have been abundant. D.C. proposed to become a state. It was refused. Then it proposed to integrate into other states. That was refused, too. A 2009 D.C. proposition in Congress was promptly sent to a commission where it was promptly abandoned. Some presidents have even raised the issue, but Congress blocked them.   

Why haven’t the courts done anything about it? The legislature’s inability to provide basic human rights to U.S. citizens is not something new. The reason is that generally, under the Constitution, if you’re not a state, you can’t have a member in Congress and you can’t vote for President. The District of Columbia is specifically excluded from voting for Congress by the Constitution. In fact, its residents can vote for President only because of the XXIII Amendment passed in 1961.

The argument for United States territories has the same issue, but for a different reason. Historically, it is founded on racist decisions in 1901-1905, written by Justice Henry Billings Brown, the creator of the “separate but equal” doctrine. The decisions mention the words “alien races.” However, such discrimination is not isolated to the past: In June 2015, The District of Columbia Court of Appeals used those racist cases that have shamed the reputation of the Supreme Court in order to refuse citizenship to American Samoans. The Court of Appeals went as far as to claim that such discrimination does not violate the XIV Amendment (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States”).

But even if we assume that the Constitution prohibits the United States territories and D.C. from voting today, amendments are possible. So far, the inaction of the United States government has openly perpetuated a violation of the most fundamental right provided by the most important legal text in the United States. What’s more, despite extensive coverage, the 2016 elections have not covered the fact that a significant portion of law-abiding adults cannot vote. How can the fact that in some places the USA is not a democracy not be on the first page of every newspaper every day?

Rudolf Efremov is a student at Cornell Law School. Responses can be sent to associate-editor@cornellsun.com. Barely Legal appears alternate Fridays this semester.

One thought on “BARELY LEGAL | The Constitutional Right to Remain Forgotten and Ignored

  1. If you live in D.C. and want to vote – move. The concept that the Constitution should be changed so that someone who decided to live in D.C. can vote, when they knew they could not when they moved there shows how lazy most Americans have become. As for the U.S. territories, set them free to take care of themselves, all they are is a drain on our tax dollars. The U.S. is a republic, not a democracy, and the position that these outliers make it less than the most open and free Country is less than sound.

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