Political satirist and comedian, John Oliver, in a recent show drew attention to the fact that U.S. citizens residing in Puerto Rico, Guam, the Commonwealth of the Northern Mariana Islands and the Virgin Islands and U.S. nationals in American Samoa do not have equal voting rights. In particular, these U.S. territorial residents do not have the right to vote for the President. They also do not have meaningful representation in Congress. Although they have a voting delegate, the delegate does not have voting rights in the House. (And, as a I blogged previously, people in the territories, such as Justice Sotomayor's parents, should not be described as immigrants).
What's notable about Oliver's segment was his explanation of why these residents do not have equal voting rights. Specifically, he explained "The Insular Cases," a series of cases decided at the turn of the twentieth century after the United States acquired the Philippines, Puerto Rico, Guam and Cuba. Questioning the ongoing reliance on these laws, Oliver reminded viewers that the author of one of these cases, Justice Brown (author of Plessy v. Ferguson) wrote in Downes v. Bidwell that "those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation, and modes of thought, the administration of government and justice, according to Anglo-Saxon principles" and thus, the Constitution does not fully apply in the territories.
The question of the application of constitutional rights, including the right to vote and the right to acquire U.S. citizenship at birth (an issue that we have previously blogged), are complicated and Oliver's segment recognized that. Yet, addressing the viability of the Insular Cases should not be too difficult.
RCV