This week, I testified again in opposition to the current legislation to create a new form of non-state voting member in the House of Representative for the District of Columbia. The hearing before the House Judiciary hearing was quite lively and it appears that the bill has the votes to pass. My testimony is linked below.
As I state in my testimony, I have many friends on the other side of this debate, including the Hon. Eleanor Holmes Norton who has tirelessly and brilliantly represented the District of Columbia for many years. Like many, I believe that it is a terrible injustice for the District residents not to have a vote in Congress. As Justice Black stated in Wesberry v. Sanders: “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” However, the great wrong done to the District residents cannot be righted through the violation of the Constitution itself.
This is not a debate about the ends of legislative action but the means. In a nation committed to the rule of law it is often as important how we do something as what we do. This is the wrong means to a worthy end.
In a prior hearing on this proposal in the Senate, Del. Norton told Committee members that if they are going to vote against this bill, “do not blame the Framers blame Jonathan Turley.” However, I can take neither blame nor credit for the structure and limitations of our Constitution. It is the world’s most successful constitutional framework because it is carefully balanced with limited powers between the three branches. It is a design that can be frustrating at times when injustices demand quick action. Yet, the very stability and integrity of our system demands that we remain faithful to its provisions, even when our principles stand in the way of our passions.
Just as there is no debate over the need for a vote for the District, there is no debate that such a vote can be obtained by other means. Indeed, there is no longer any claim to be made that the District (or the Democratic Party) lacks the votes needed to take a constitutional course. The political realities and expediencies that gave raise to this idea no longer exist. With control of both houses and the White House, the sponsors can secure a lasting and unassailable vote in the House of Representatives through either retrocession or a constitutional amendment. Indeed, some republicans have expressed their support for a constitutional amendment that would allow a voting House member for the District.
I have often appeared as a witness for both the Democrats and the Republicans on constitutional and statutory issues. There are many such issues that present close questions. This is not, in my view, one of them. I continue to consider this proposal to be one of most premeditated unconstitutional acts by Congress in decades.
While some may view it as obnoxious (and indeed some at the time held the same view), the Framers most certainly did understand the implications of creating a federal enclave represented by Congress as a whole. I must respectfully but strongly disagree with the constitutional analysis offered to Congress by Professor Viet Dinh, and the Hon. Kenneth Starr. The interpretations of Messrs. Dinh and Starr are based on uncharacteristically liberal interpretations of the text of Article I, which ignore the plain meaning of the word “states” and the express intent of the Framers. Like others, including the independent Congressional Research Service, I believe that this Congress cannot legislatively amend the Constitution by re-defining a voting member of this house. Of course, the language of this legislation is strikingly similar to a 1978 constitutional amendment that failed after being ratified by only 16 states. Indeed, in both prior successful and unsuccessful amendments (as well as in arguments made in court), the Congress has conceded that the District is not a State for the purposes of voting in Congress. Now, unable to pass a constitutional amendment, sponsors hope to circumvent the process laid out in Article V by claiming the inherent authority to add a non-state voting member to the House of Representatives.
The language of the Constitution is clear and unambiguous. Absent an amendment to the Constitution, only states may vote on the floor of the United States House of Representatives. This text is consistent with the constitutional and legislative history connected with the federal enclave. The textual and historical evidence is laid out in my academic study, “Too Clever By Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress,” which I have attached to my statement.
For the testimony, click here.
Citizenw wrote: “Please note also, that [Rep.] Steny Hoyer, representing the people of the state of Maryland, made absolutely no effort, to my knowledge, to advance the idea of retrocession of DC to Maryland.”
This is a good point. Retrocession is almost always offered by those who have no power to make it happen. I have made the point earlier that it has no more than 25% support in that state, and no more than 20% in the District. Professor Turley advocates retrocession, but he should recognize that it would become a viable alternative only if the invitation came from Maryland.
Srory, I realize I “promoted” Steny Hoyer to Senator. Substitute Mikulski or Cardin if you will. Won’t change much.
In that article linked above at Slate, Professor Richard Hasen wrote:
“If the current D.C. voting rights law is indeed unconstitutional, then the only way to get D.C. a full House member is the way that gave district residents the right to vote for president: a constitutional amendment that would either make D.C. a state, give it a member of Congress (and possibly two senators) without making it a state, or merge D.C. back into a neighboring state, such as Maryland.”
I posted a response at his website (Election Law Blog):
http://www.concurringopinions.com/archives/2009/01/the_best_way_to.html
In this sentence, you state that the “only” way to get a D.C. House member is a constitutional amendment. The amendment would either make D.C. a state, or merge it back into a neighboring state.
I disagree. First, an amendment is clearly unnecessary for merging back into a neighboring state, that is, retrocession. Alexandria and Arlington were returned to Virginia in the 19th Century. It required two pieces of legislation: and Act of Congress for the federal government to give up its rights, and an act of the Virginia legislature to accept the lands. That is “all” that is necessary for retrocession to Maryland.
The problem is that all available evidence shows that Maryland voters are unwilling to accept the District. A poll in the 1990s showed no more than 25% for this. So it is an illusory solution. But no constitutional amendment is needed.
Second, a constitutional amendment is unnecessary for statehood. The text of the Constitution expressly states that new states may be admitted. The only limitation is that no state may be created from the territory of an existing state without its consent. Massachusetts consented to the creation of Maine as part of the Compromise of 1820.
Statehood legislation would reduce the size of the Seat of Government to the White House, federal offices and parks. There would be no citizens. The President and First Lady would vote and continue as citizens of their home state. The remaining area could then be admitted as a state.
Third, a constitutional amendment could be attempted. It could grant the District a single House voting member, perhaps linked with legislation giving an extra seat to a solid Republican state upon ratification. It could also grant two Senators, but that has been tried and failed.
So that bland statement that a constitutional amendment is the “only” way is incomplete.
citizenw,
Copy that on Mason. He was a sharp one.
Prof.Turley:
I just read your entire testimony and I feel like I have earned a law degree. This is the most brilliant writing that I have read in years. I do not know why Obama has not made you Attorney General or White House counsel. I guess speaking truth to power is not too popular on either side.
Over at Slate, a law professor argues that the DC voting bill is probably unconsitutional but that Congress should approve it anyway because there are credible legal opinions on both side and the courts can resolve it:
http://www.slate.com/id/2209979/
Vince:
I know. Mason was older than Jefferson and Madison, and something of a mentor to them. His influence on our form of Government has been VASTLY under-rated by History, unfortunately.
For students of all ages, here is the CRS Report JT cited, along with another report providing further info:
CRS Report, Constitutionality of Awarding the Delegate for the District of Columbia a Vote in the House of Representatives or the Committee of the Whole, January 24, 2007, by Kenneth Thomas, Legislative Attorney, American Law Division
http://assets.opencrs.com/rpts/RL33824_20070124.pdf
CRS Report, District of Columbia Voting Representation in Congress: An Analysis of Legislative Proposals, Updated January 30, 2007, by Eugene Boyd, Analyst,
Government and Finance Division
http://www.dcwatch.com/issues/voting070130.htm
citizenw: Very good comments. The remarks of George Mason led me to find this from the ratification debates:
QUOTE Mr. George Mason thought that there were few clauses in the Constitution so dangerous as that which gave Congress exclusive power of legislation within ten miles square. Implication, he observed, was capable of any extension, and would probably be extended to augment the congressional powers. But here there was no need of implication. This clause gave them an unlimited authority, in every possible case, within that district. This ten miles square, says Mr. Mason, may set at defiance the laws of the surrounding states, and may, like the custom of the superstitious days of our ancestors, become the sanctuary of the blackest crimes. Here the federal courts are to sit. We have heard a good deal said of justice.UNQUOTE
http://press-pubs.uchicago.edu/founders/documents/a1_8_17s6.html
Mason voted against ratification.
Literalism when it serves a purpose…
“All MEN are created equal.” Therefore non-white “sub-men”, women, and youths (none of them “men”), being not “created” equal, need not be “treated equal(ly).”
“State when it serves the purpose of the author, but “not a state” whn it doesn’t serve the purpose.
Convenient!
“[Congress], with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but “to BIND us in ALL CASES WHATSOEVER” and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God.”
Thomas Paine, The American Crisis, Number One December 23, 1776 (Paraphrased slightly)
As in the Declaratory Act of 1766, the District Clause is an unwarranted attempt by a national legislature to exert and arrogate to itself absolute power “in all cases whatsoever” [in both instances] over an unrepresented minority of the nation.
Whether or not thr Founders knew, realized, or intended that result, under the bedrock fundamental principles on which this nation was founded, they “had, hath, and of right ouught to have” no such power.
The District clause is as bad a piece of work as was the three-fifths rule, and it’s time that was recognized.