2.1.1. Physical Enhancements—"Ancestry"

*"A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States"* [16]

Based on the legacy of the denial of the right to vote to people of different ancestries or ethnicities in the United States, both as a matter of law and a matter of practice, it seems likely that if a physical enhancement changed a human to actually be (or appear to be) of an ancestry that was not legally entitled to vote (for example, not legally entitled to citizenship under then-current United States laws),<sup>6</sup> then such a person might not be, in practice, fully enfranchised, particularly if the change was made genetically such that the

<sup>4</sup> "Taxation without representation is tyranny" is commonly attributed to attorney James Otis, who was one of the representatives from Massachusetts in the Stamp Act Congress (approx. 1761).

<sup>5</sup> In 2018, the richest member of Congress had a Net Worth estimated at \$500,000,000, and the median net worth of all members of Congress was approximately \$500,000 [14].

<sup>6</sup> Former Professor Rachel Dolezal, who pretended to be Black for decades and was president of the Spokane, Washington chapter of the National Association for the Advancement of Colored People, is just one example of people who have attempted to "pass" as having a different ancestry or ethnicity (although at a time in U.S. history when Blacks were enfranchised, so she did not give up her right to vote in doing so) [17].

birth ancestry was modified under the then-applicable laws. Similarly, one might expect that some parents might want to change their child's ancestry to be (or appear to be) that of a more privileged group. In such cases, a human who might otherwise not have the right to vote could, in theory, then have the right to vote, particularly if the change was made prior to birth. All of this analysis of course must be caveated by skepticism toward any scientific definition of "ancestry" and instead relies on the meaning of "ancestry" in the context of citizenship, including for immigrants who seek entry into the United States or naturalization after entry<sup>7</sup> [18].

American colonists felt they had the rights of English citizens to vote for representatives in Parliament in England. They viewed themselves as retaining their citizenship rights as emigrates and descendants of emigrates from England. However, the right to vote was (and still is) only available for "citizens of the United States." This means that only "native born" United States citizens (but for many years not indigenous peoples) or "naturalized" citizens have the right to vote.

Until the 14th Amendment was ratified in 1868 after the American Civil War, the Supreme Court decision in *Scott v. Sanford*, 60 U.S. 393 (1857) (the "*Dred Scott* decision") was the law of the land. Under the *Dred Scott* decision, even freed slaves who were born in the United States could not become United States citizens (and therefore have a constitutional right to vote) because they were descendants of non-citizens (Africans) [16]. Section 1 of the Fourteenth Amendment granted citizenship to "All persons born or naturalized in the United States." In the infamous decision, the Supreme Court explained that freed slaves "are not ["people of the United States"], and that they are not included, and were not intended to be included, under the word 'citizens' in the Constitution, and can, therefore, claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and whether emancipated or not, ye<sup>t</sup> remained subject to their authority, and had no rights or privileges but such as those who held the power and the governmen<sup>t</sup> might choose to gran<sup>t</sup> them." [16]

Shortly after the ratification of the Fourteenth Amendment, the Fifteenth Amendment was enacted and specified that voting rights could not be "denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Having this in the Constitution was of course an important step forward, but as a matter of law and practice systemic racism and white supremacy continued through a process of legal "informal disenfranchisement", in which "a group that has been formally bestowed with a right is stripped of that very right by techniques that the [United States Supreme] Court has held to be consistent with the Constitution." [19]. As Professor Khiara Bridges explains, "While the Fifteenth Amendment formally enfranchised black men, white supremacists in the South employed methods—poll taxes, literacy tests, residency requirements, and white primaries—that made it nearly impossible for black men (and after the passage of the Nineteenth Amendment, black women) to actually vote in the South for a century after their formal enfranchisement. Moreover, the Court held that these techniques of racial exclusion from the polls were constitutional."<sup>8</sup> The equivalent of a "poll tax" as a means to prevent poor people from immigrating to the United States, continues through the fees for applications for naturalization. In a lawsuit, Project Citizenship alleged that an increase in the filing fee for N-400 naturalization applications from the US\$640 to \$1170 and a new rule that would allegedly disqualify 97.2% of green card holders from receiving fee waivers, "constitutes a wealth test for citizenship" [20,21].

<sup>7</sup> Ref. [18] ("for most of its history U.S. law treated newcomers differently according to race. Between 1790 and 1952, legislators restricted naturalization—the process by which immigrants become citizens—to particular racial and ethnic groups, with a consistent preference for whites from northwestern Europe. Laws restricted black immigration beginning in 1803, and a series of subsequent measures banned most Asians and limited access by immigrants from southern and eastern Europe.").

<sup>8</sup> Ref. [19] at 48–49.

The Fourteenth and Fifteenth Amendments did not give the right to vote to Native peoples. Indeed, many Native people were legally wards of the governmen<sup>t</sup> with no political voice [22]. This treatment of indigenous peoples as "non-citizens" even in the land in which they were born echoes the Nuremberg laws of Nazi Germany, which legally classified people defined as "racially" Jewish by law as "subjects" of the state versus people of "German or kindred blood" who could be citizens [23]. The Nuremberg laws later were expanded to cover Black people and the Roma, who were also targets of the Nazi genocide.

Similarly, in the United States, "ancestry" has been used as a proxy for the social construct of "race" or "ethnicity" [24,25]. We can see similar voter suppression measures in the United States that appear to be based on discrimination due to "ancestry."<sup>9</sup> For example, United States citizens "by birth" are not required to pass any test to demonstrate they understand the significance of voting. However, people born outside the United States who want become citizens are required to pass the "civics" portion of the Naturalization Test. There are questions on the test that a relatively small percentage of Americans could answer correctly, such as, for example, "How many amendments does the Constitution have?10"

These types of restrictions were intentionally designed and enforced to disenfranchise those deemed "lesser" or "other" and privilege those who were already "grandfathered" in as voters. The "phrase 'grandfather clause' originally referred to provisions adopted by some states after the Civil War in an effort to disenfranchise African-American voters by requiring voters to pass literacy tests or meet other significant qualifications, while exempting from such requirements those who were descendants of men who were eligible to vote prior to 1867" [30]. "Providing such protection commonly is known—in the case law and otherwise—as 'grandfathering.' We decline to use that term, however, because we acknowledge that it has racist origins." [30]

The Voting Rights Act of 1965 (VRA) prohibited making the right to vote being dependent on whether a citizen was able to read or write, attained a particular level of education, or passed an interpretation "test." However, the VRA does not prohibit such tests in the immigration or naturalization process toward citizenship. Just like a "whitesonly" primary could legally be used to prevent Blacks from participating in voting, if a person cannot even become a citizen (and therefore have a right to vote) without passing a wealth test or literacy test, then the voter suppression has effectively been shifted to an earlier point in time.

What can we learn from this history when we consider human enhancements? First, we should expect discriminatory treatment, and efforts (legal and otherwise) to deny the right to vote or discourage voting, for anyone who has a physical enhancement of a type that makes them seem "other" or "lesser" than those in power. For example, if a person were to enhance their skin color to make it darker, or to modify their physical appearance to look like they were of a different ancestry, they could be subject to targeted discrimination and denial of the right to vote under then-current laws. Second, as will be explored further in Section 3, if "ancestry" (however the term is defined, whether based on physical appearance, some type of genetic marker(s), or place of birth of the enhanced human or of people to whom they are biologically, socially, culturally, or legally related) can be changed via human enhancement technology, then "ancestry" may be an artificial distinction that should no longer be the basis for denial of enfranchisement. Such modifications to "ancestry" might, perhaps, be made either before birth through genetic

<sup>9</sup> For example, in U.S. elections in 2012 and 2014, Rosa Maria Ortega, an Hispanic immigrant who was a permanent resident of the United States and was brought to the country from Mexico as an infant, apparently voted without knowing it was illegal and was sentenced to eight years in prison. She then faced deportation [26]. Mexican lawful immigrants are among those least likely to become U.S. citizens [27]. ("desire is high, but about half cite language, cost barriers").

<sup>10</sup> U.S. Citizenship and Immigration Service, "Civics (History and Government) Questions for the Naturalization Test," (rev. 01/19) [28] (Q7: "How many amendments does the Constitution have? twenty-seven (27)") (Q48: "There are four amendments to the Constitution about who can vote. Describe one of them. Citizens eighteen (18) and older (can vote). You don't have to pay (a poll tax) to vote. Any citizen can vote. (Women and men can vote.) A male citizen of any race (can vote)."). For an example of a post-Civil War literacy test that was designed to be impossible to pass, see the Louisiana Literacy Test. "The literacy test – supposedly applicable to both white and black prospective voters who couldn't prove a certain level of education but in actuality disproportionately administered to black voters – was a classic example of one of these barriers [to enfranchisement]." [29]

or biological modifications or during a human lifetime, potentially including ongoing modifications and reversions to the original default ancestry without any enhancements. In such cases, "ancestry" would seem very artifactual. However, "ancestry" might still be relevant to self-determination for particular groups that have a shared group identity in addition to the identity of their individual members, such as an indigenous tribe or a disadvantaged caste, as will be discussed in Section 3 below. We may come to a similar conclusion regarding gender-related human enhancements as an additional example of "moderate" enhancements.
