"While We're Scrapping Things, What's Next? Quartering of Troops?"
In the midst of two wars overseas and an economic recession, the Senate continues to move forward with a bill to give the District of Columbia a seat in the House of Representatives. (For an wise and astute exposition on the topic, see here, and here -- the last two minutes are pure Colbert gold.)
The arguments in favor of the bill are taxation & representation, one person, one vote, basic fairness, yoo-dit-do-dit-doo, I get it, I get it, I get it. But the Constitution requires that House members be chosen “by the people of the several states.” No statute can change that: the only viable options are to amend Article I, or admit the District of Columbia as a state.
Next up: the District of Gitmo.
The arguments in favor of the bill are taxation & representation, one person, one vote, basic fairness, yoo-dit-do-dit-doo, I get it, I get it, I get it. But the Constitution requires that House members be chosen “by the people of the several states.” No statute can change that: the only viable options are to amend Article I, or admit the District of Columbia as a state.
Next up: the District of Gitmo.
Labels: Rabid Liberals
posted by Patrick Bageant at 12:42 PM
28 Comments:
Congress has passed legislation in the past that was clearly unconstitutional. They often explicitly state they will leave it to the Courts to decide whether a particular act will stand or fall. Example: McCain-Feingold campaign financing act. So, the text of the Constitution is no barrier to passing the legislation. Especially when the Supreme Court rubber stamps legislative behavior so frequently, gutting the Constitution in the process.
Who would have standing to challenge this?
A DC resident who was adversely affected by a law in which the DC representative cast a deciding vote.
Couldn't any non-DC resident challenge it on the basis of it diluting their "voice"? Or am I just making things up?
Matt there's a long line of cases rejecting standing based on your status as a voter. Language from those cases, I would think would pose a barrier. A better, modified, version of that would be a Representative suing. But that arguably only gets around injury in fact (if that). It doesn't get around the political question issue.
I'm pretty sure that this is sort of a token shout out to DC. So Congress will in all likelihood draft a jurisdiction granting clause with it to let the courts strike it down.
DC has long fascinated me. Madison and Morris thought Congressional power over DC could be used to establish a lot of things unimagined at the time...such as a University of the United States.
Hi Patrick,
I certainly think there are strong constitutional arguments on both sides.
While you correctly point out that Article I grants congressional representation to the members of the several states, it is also worth noting that Article I, Section 8, Clause 17 grants Congress broad, sweeping powers over the District of Columbia. Legal scholars on both the left and the right have concluded that the Framers intended this clause to allow Congress to do pretty much whatever it wants with the District of Columbia, including grant it a vote in Congress.
Also, it's hard for me to believe that the intent of the Framers of the constitution was to deprive people in DC of the right to vote. Finally, Congress has treated DC as if it were one of the "several states" in a number of other situations, including with respect to diversity jurisdiction.
Even if the constitutionality of the DC Voting Rights Act remains up for debate, I hope you wouldn't fault to people of DC (like me) for trying this route, given that we've tried both the constitutional amendment route and Statehood before--Statehood failed in a vote in the House in 1993, the Amendment passed in 1978, but failed to be ratified by enough states. Both failed largely because it's hard to get the people with power, aka, the people with voting representatives in Congress, to understand the situation or to care enough about it to act on behalf of their disenfranchised fellow citizens.
It will be interesting to see how it turns out if the DC VRA passes and is challenged in the courts. Thanks for bringing this up.
I should have qualified my statement. I'd imagine that's how some crazy guy somewhere would challenge it, but that a court would throw it out. Much like the courts throw out the cases where crazy people claimed our two former presidential candidates were not U.S. Citizens.
Suuuuuure that's what you meant.
Nell, part of your argument strikes me as far fetched. At the time, the United States had territories that were not part of the various states. And people lived in those territories. So the language "of the various States" is pretty intentional. Second, they selected the permanent seat of government outside the control of any State. That too is intentional. We could have named NYC the capital and moved on. But they specifically did not want the national seat of government to be subject to any state.
Third, there were no DC residents at the time. At best, only federal employees and elected officials would live there (I know, the irony!!!). And this goes back to the idea of not having federal elected officials subject to any State. So, depriving them of the right to vote was not even imagined. ("What vote? They're already elected officials.")
None of this is a normative argument. But I think the law is pretty clearly unconstitutional as drafted. I'm just wondering if there's any room for word games. Maybe DC can have a "delegate" who under House rules would be allowed to vote on the floor. Or maybe work with Virginia on some thing where the state gets an extra Rep, and then under state law, the Rep is elected by DC residents.
Or we could just annex substantial portions of the residential neighborhoods of DC and split it among Virginia and Maryland.
In DC, "residential neighborhoods" are already called "Virginia" and "Maryland."
The following is lifted part and parcel from my end of an email exchange, because in the post above I don't think I articulated my views very clearly, at all:
Citizens deserve a voice in their government. All citizens. (As side issue, I believe prisoners deserve a vote, too.) Further, the taxation issue bothers me, but maybe that's because I'm from Idaho -- we are disinclined to believe in taxes anyway -- as does the possibility that DC citizens could be drafted. In fact, they probably were drafted in Vietnam. That young people were killed in Vietnam for a government that, by definition, did not comprise their voice, is shameful.
For me, the rub is with the politics of the bill itself. In light of the constitution's language, it is difficult for me to see how this bill is a wise use of time and resources -- both the legislative energy now, and the judicial energy that will go into striking the law down. Perhaps a controversy will draw attention to the issue in a way that is politically worthwhile. But if not, the bill seems like it has high potential for bang without buck. That makes me feel like DC citizens are being jerked around or misled or even pandered to.
From my perspective, the responsible thing to do is amend Article I or ratify DC as a state. I believe, for a lot of reasons, that the former is a better idea than the latter, but I suppose either would work.
"Perhaps a controversy will draw attention to the issue in a way that is politically worthwhile. But if not, the bill seems like it has high potential for bang without buck. That makes me feel like DC citizens are being jerked around or misled or even pandered to."
I think this is exactly right. I would be surprised if most people even knew that DC citizens didn't have a house vote. Obviously it takes quite a bit of effort to get the Const. amended (indeed, most amendments have come about as a result of major controversies), so the more fuss the better. I think this is one situation where drama would be productive (potentially).
Agreed, Toney. The first time I went to DC at age 21, I saw the license plates that say "Taxation without Representation" and I thought "What the heck is that about?" The more people know the better.
See, this is the sort of damage that law school does.
In what possible universe could it be viewed as proper, just or even logical that United States citizens *who live in the capital of the United States* cannot vote for the national legislature which sits *in their home city*?
In the universe of law school and lawyers, that's where. And that's the only where. (Setting aside the partisan arguments of folks who simply don't want a jurisdiction which is 92 percent Democratic to have a vote in Congress.
"But the Constitution SAYS the states!" Patrick cries. "And DC is NOT a state!"
And so? Who makes arguments like this before they go to law school?
It's fine that the Constitution says that. And it's true that DC is not a state. But the Constitution says, and has said, a lot of things that don't make any sense. It has also said a lot of things that courts, and Congress, have simply ignored.
Common sense, people. And justice. Common sense and justice -- two things law school successfully beats out of everyone.
Just a little history about DC voting rights. My grand-dad was nearly 60 and my mom nearly 30 before they could cast a vote for anything -- president, mayor, dog catcher, whatever. There was nothing for them to vote on. It was particularly galling for them as Irish-Catholic US citizens when in 1960 when they couldn't vote for Kennedy.
DC was run by second tier, old-fashioned southern racists on the DC committee. That's the origin of the DC voting rights phrase "the last plantation." Some of the historical opposition to DC voting rights has always been rooted in that odious attitude.
During the Viet Nam war, DC had a lot of kids (mostly black) drafted and killed even though they had no voice in "the people's chamber" to oppose the war. I remember my brother and I talking about the possibility of being drafted and we didn't have anyone in Congress.
Eventually DC had a representative who could vote in committee but not on the floor.
My normative argument is pretty obvious: every US citizen ought to have a representative in Congress. It's a democratic republic and universal Congressional suffrage isn't something to merely tolerate but rather to insist upon. Even if you're a political conservative, don't you support representative democracy for all US citizens?
I think it would take an amendment, which I hope you'd all support. You can't give the land back to VA (which already took back its portion of DC; look at a map) or MD, which doesn't want it. The Constitution says that you can't mess with a state's boundary without that state's permission. Finally, I think that two senators is way too much representation for a city of about 650,000. It was conventional wisdom that DC could have had a representative already if it had dropped the drive for two senate seats. But the most powerful local politicians wanted those seats, which are far tonier than sitting for re-election every two years in the people's chamber.
John Steele
6:58 - you embarass yourself and completely discredit your argument by saying that law school ruins people's ability to reason and then giving such terrible reasoning yourself. Patrick isn't saying that it's just or logical to deprive the citizens of DC the opportunity to vote. If anything he's advocating for them, but pointing out that a statute might not be the best route to go.
And there isn't a more basic argument than when the constitution says "states", it means states. A 3rd grader, let alone a law student could probably figure that out. Would it be worth the effort and money that could be better put elsewhere if it were just to get thrown out later by the SC? This is the gist of patricks argument (as well as I see it).
And thanks for the history John Steele!
Respectfully, 6:58, the difference between pre- and post- law school Patrick isn't that his sense of morality and justice has been beaten from him. It's still there, but it has been glossed by a sense of practicality.
No amount of outrage will make the bill constitutional. And if it's not constitutional, it's a dead letter that does no one any good. That's the only observation I was trying to make.
Toney and Patrick,
6:58 here. I think you mis-read me slightly. My snarky tone may have gotten in the way of my primary message, which is this: I disagree with Patrick that the bill is unconstitutional merely because the District of Columbia is not a “state.”
Sometimes the Constitution stands for justice and common sense, rather than obtusely literal readings of its words. It is both obtuse and overly literal – in other words, very law-school-like, if not lawyerly – to conclude that because D.C. is not a “state," the drafters must have meant to exclude U.S. citizens who reside in the U.S. capitol from voting representation in Congress.
That's even worse. Let's have the feds break down your front door and seize the crap out of your belongings because you know, sometimes a home is not a home. Unbelievable.
Actually, Armen, the Fourth Amendment says “houses,” not “homes.” Your mistake, as well as your illustration, unintentionally prove 6:58's point quite well. Words can be, but are not always, flexible. There are many instances in law in which District of Columbia has been held to be a “state.” See, e.g., diversity jurisdiction. It is overly simplistic to conclude that simply because the Constitution says “state” in reference to the election of Congress, the District of Columbia is *necessarily* excluded.
To extend your hypothetical a bit, it is like saying that if you live in the District of Columbia, the local police (not the feds) can break down your front door and “seize the crap out of your belongings,” as you put it, because you don’t live in a “state,” and the 14th Amendment applied the Fourth Amendment to the “states,” not to the District of Columbia. (Remember that while all criminal prosecutions in DC are federal, the local police force is actually still local, not federally empowered.)
Here, I'll make it easy for you: Name any time in the history of the United States where its citizens living in a territory of the United States had the right to for members of Congress.
The fact that Congress has to specify that DC is treated as though a state for diversity jurisdiction explicitly indicates that it is, in fact, not a state.
*to vote.
"Condemned to the use of words, we can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. 104, 110 (1972).
. . . so, Armen, why can't Congress just treat D.C. "as if it were a state" in this instance, if it could do so for diversity jurisdiction? And if D.C. isn't "really" a state, why do we treat it that way for diversity jurisdiction?
Um, Armen, can you name any time in the history of the United States when the capital of the United States was in a United States territory? The District may not be a "state," but it sure as heck isn't a territory.
2:18, that's a good point.
2:31, not a good point. People in US territories are US citizens or nationals, pay federal taxes, subject to US law, etc. But can't vote for anyone in Congress. Fair? No. Can Congress change that by statute? No.
I think it'd be awesomer if DC residents didn't have to pay federal income taxes. Armen, you did not clarify exactly how federal taxation works in the territories. They pay Social Security, payroll, etc, but not income tax.
I'd take that over statehood or a vote in Congress. If only Congress would pass THAT bill.
Since that's not on the table, I'll take my chances with Plenary Power and all the exceptions carved out over time. You know, if it walks like a duck, quacks like a duck, and shows up on drop down menus online in the "state" category, we should probably be allowed to vote in Congress.
Further, it seems to me that if D.C. were not 65% black, we would have an amendment.
I recognize this won't satisfy the Scalias on this blog, but since one of the principal purposes of the judiciary is to preserve the rights of the minority in the face of legislative tyranny, I'm going to hope for the best.
Waste of time? Easy for someone with full voting rights to say.
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