Congress Re-Considers D.C. Vote Legislation

260px-capitol_building_full_viewThis 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.

35 thoughts on “Congress Re-Considers D.C. Vote Legislation

  1. note: I am re-posting my comment from the earlier article in defense of the Bill. Professor Turley and I rarely disagree in matters constitutional (smiling animals do not count), but here I think the overriding principle of DC voting rights takes precedence over the less than perfect, but imminently practical, approach adopted by the Bill which I find Constitutionally permissible. Good luck to JT in his testimony but, for this one time only, I hope it falls on deaf ears:

    I don’t normally advocate incrementalism in constitutional matters, but I think the Bill’s approach addresses an historical wrong and passes Constitutional muster. To mix a metaphor, Rosa Parks being “parked” over the bus wheels represents a substantial advance over the current state of affairs which confines DC to the rear bench. I agree the constitutionality of the Bill could turn on the meaning of the word “state(s).” However, I disagree with the notion that the word has no application to the District except in matters of fundamental constitutional rights for its inhabitants such as the recent Second Amendment case, DC v. Heller.

    In Hepburn v. Ellzey (1805), the Supreme Court in the personage of no less than CJ John Marshall acknowledged that while the word “state” was sometimes used in the more restrictive sense advocated by Professor Turley & Vince, in other places in the Constitution it was used more broadly and in accord with the generally accepted legal definition which holds it to means a “distinct political society.” While Marshall did not accept the view that DC was a “state” for purposes of federal court jurisdiction, he did say that “this is a subject for legislative, not for judicial consideration.” Implying that the legislature could constitutionally apply a broader meaning of “state” to include the District within the ambit of rights available to the “states.” This case was the precursor to the case cited by Professor Turley, Nationwide Mutual Ins v. Tidewater Transfer, which permitted DC residents to sue in federal court despite no such authorizing language in Article III.

    I agree the Bill will have to withstand Constitutional scrutiny, but I disagree this is a “brightline” case with legislation that is obviously unconstitutional. In essence, Professor Turley and Vince Treachy argue that the Court may consider DC a “state” for fundamental constitutional protections of its citizens, but not for the most basic right of all citizens which is representation in government. As Professor Turley says in his statement above, “The major cases extending the meaning of states to the District involved irreconcilable conflicts between a literal meaning of the term state and the inherent rights of all American citizens under the equal protection clause and other provisions.” I find this a little curious and a “distinction without a difference” which turns the concept of representational democracy on its head. If one cannot vote, what value is there to possess handguns, sue in court, or enjoy such other “fundamental” rights which may, by plebiscite of those other than yourself, be taken away without even a legal whimper from you. I think the opponents of this Bill are too dismissive of the rights of DC citizenry by claiming they gave up one right (representation) to obtain another (to be a capitol city). I suspect DC residents would revoke that deal in an instant if they had ever bee given the chance–which they weren’t.

    From a policy standpoint, the Bill does redress a wrong and its approach, while not perfect, certainly represents an improvement over the current abominable situation until something more constitutionally perfect comes along.

  2. Unrelated, but Prof. Turley, did you hear that you were quoted on Wait, Wait…Don’t Tell Me, the NPR news quiz? Your bit on the oath being CJ Roberts’ equivalent of a wardrobe malfunction. I know it was days ago, but I just listened to the podcast.

  3. There are two steps to the analysis. First, does Congress have authority under its enumerated powers to enact the legislation. Turley argues (persuasively, I think) that Congress does not. He sees the District Clause as a grant of plenary power to Congress over matters within the District. He does not see it as a grant of authority over national affairs, and therefore it does not authorize Congress to alter the composition of the national legislature.

    But assume for argument that it does.

    I think that a law that grants partial representation could be challenged as a violation of equal protection. Technically, it would violate the equal protection aspect of the due process clause of the 5th Amendment.

    In the crucial area of voting rights, it would result in all other voters in the U.S. electing two Senators in addition to a Representative, while DC voters would only have a single Representative. There would be little rational basis, let alone compelling state need for this.

    The US has to govern impartially, and while it has a wide range of reasonableness, it is barred from invidious discrimination.

    There is a long American history of half measures, reaching back to the Half Way Covenants in Puritan days.

    But consider the hypothetical. When the Voting Rights Act was up for a vote, suppose a southern state proposed a compromise until something better came along. Suppose black voters would be allowed to vote for the state house of representatives, but not the senate? Suppose they could vote for the U.S. House but not the Senate. I doubt if it would have been constitutional.

    Clearly, there are times when something is better than nothing, but the argument was made that segregated education was better than no education.

    The constitutional problem is that the equal protection clause sometimes poses an absolute bar to partial solutions.

    It’s like the visitor to the American Virgin Islands who suggested they change over from driving on the left, to driving on the right like the rest of the U.S.

    He suggested they do it gradually.

    Cars the first week.

    Trucks the second.

  4. Before the opponents of D.C. voting rights get up a head of steam, I just wanted to post an advanced look at the old, tired, thoughtless arguments in opposition.

    There are THREE valid means for full representation for DC. They are (1) constitutional amendment, (2) retrocession with the express consent of Maryland (or, Virginia, or some other state) or (3) statehood.

    Before you suggest return to Maryland, remember that retrocession has never won the support of the District’s population, or that of the people of the state of Maryland. A Wirthlin Group poll conducted in Oct.-Nov. 1994 found that only 19% of DC residents supported retrocession and only 24% of Marylanders supported the idea. The Maryland State Legislature would have to ratify any DC retrocession bill passed by Congress, and is very unlikely to approve. Alexandria and Arlington were as returned to Virginia ONLY after the Virginia legislature gave its approval.

    Before arguing that if DC residents want the vote, then leave and move to a state, understand that many residents cannot afford to move. King George III could have told the colonists to move back to England to vote. Most voters in DC are African-Americans. Remember that, for nearly 100 years, until the Voting Rights Act of 1965, most African-Americans in the south were denied the right to vote. They, too, were told by the authorities to leave and move to another state if they wanted to vote. The United States finally decided that their answer was not enough.

    Before arguing that statehood requires a constitutional amendment, remember that the Constitution expressly provides for the admission of new states in Art IV, Sec.3, as long as no new state is formed within the jurisdiction of another. That is the only limitation. Any state of DC would constitute all the present land outside a new capitol district. The Capitol District can be reduced in size, since the Constitution only says that it cannot exceed 10 miles square.

    Before saying that DC is too small, note that the State of DC would have more residents than Wyoming and almost as many as Vermont. It would be small, but Rhode Island is far smaller than Alaska, and still is a State. DC, with 68 square miles, would have 0.044 per cent of the square miles of Rhode Island, which is 2545 square miles. Rhode Island has 0.0023 per cent of the square mileage of Alaska (656,425, according to the web), yet it is still a state. There is no size requirement for States in the Constitution. It was framed by We, the People, not we the territory.

    Before you say that the founders wanted it this way, just remember that the original Constitution sanctioned slavery, contained a fugitive slave clause, counted slaves as 3-5ths of a person, denied the vote to women, and delayed abolition of the slave trade for 20 years. They got a few things wrong, and denial of the vote to the capitol district was one of them.

    Before stressing the need for an independent capitol area subject to sole congressional control, remember that any bill for statehood would establish a Capitol District that would include only buildings and parks, with no people. The President would vote in his or her home state. Congress would have complete authority over its own national capitol services area, with multiple police forces and all United States Armed Forces for protection.

    Before mentioning Marion Barry, recall that Illinois has sent four of its last eight Governors to prison, but keeps its Senators. The Governor in Connecticut went to jail, but it still votes for Senators. Marion Barry? How about Eliot Spitzer, Jim McGreevey, and Blago?

  5. Tom Davis has a statement online:

    http://judiciary.house.gov/hearings/pdf/Turley090127.pdf

    He says “the courts have never struck down a congressional exercise of the District Clause. There is no reason to think the courts would act differently in this case.”

    But the Supreme Court held in 1954 that Congress was barred from segregating the schools of the District by the equal protection aspect of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954). Scool segregation in D.C. was an exercise of the District Clause.

    Davis has been saying this for years. It is still wrong. An unconstitutional exercise of the District Clause can and has been struck down by the Supreme Court.

    Just last year, the Court struck down the District’s gun laws under the Second Amendment in the Heller case.

  6. I don’t have the chops to comment on the constitutional issues involved, but I find the argument about making DC a State persuasive. If Wyoming can have two senators, why not DC? If all you have is a member of the House, you got nothing legislatively.
    In that respect we also need to make some determinations regarding Puerto Rico and Guam. You’re either a citizen of our country, with a vote that gives you legislative and executive clout, or you’re just another occupied territory doing discredit to the occupier.

  7. Mike, a very astute comment. The U.S. was never intended to be an empire. The founders and the first Congress planned to make all the territories into states as they were settled.

    Simon Schama pointed out on BBC America that the Spanish American War changed this. The U.S fought to avenge the sinking of the Maine, but also to liberate the Phillipines from Spain. But after the war, McKinley reversed himself, and ordered an occupation and suppression of a local rebellion.

    The U.S found itself with an empire, and has never turned back. That is why we need to address the needs of all the unreprsented people under federal authority. There ought to be a national blue-ribbon commission to study this issue.

    All other countries now allow residents of their national capitols to vote. Many, like France, allow overseas territories to send representatives to the national legislatures. One difficulty for us is the disagreement on means to the end.

  8. Sorry mespo, I’m in the JT/Vince T camp on this one. It’s a structural oddity. I have to go with statehood while retaining a discrete Capitol district as Vince described. It seems the best solution to the equal protection issue by using existing process, retains an independent capitol zone as the framers intended, obviates any concerns over judicial impropriety to adjudicate said issue or the need for an Amendment. But creating a new class of legislative functionaries? Is that really in anyone’s best interest? And either they function as representatives or not. This new class of legislator would be the very definition of either “difference without distinction” or “odd man out” depending. It’s not hard to guess which one I’d think they’d likely end up.

  9. Hey JT never told us how the testimony went. I was wondering if the Committee was like most appellate court panels, and nodded in knowing agreement or glazed over at the first mention of “law professor,” and any case citation. The other alternative is inane questioning with some partisan bite — but then again the neo-cons have been driven from office.

  10. Buddha:

    I just think we may never see true representation for DC without this intermediate step. It’s been an issue for at least 50 years, it truly is the odd man out.

  11. Vince;

    My concern about the constitutionality of this bill, like yours, is on equal protection grounds. But how does one justify denial of representation to District residents and still contend that this meets the requirements of the Equal Protection Clause. This seems to be the classic equal protection violation which the Bill seeks to address. It is truly a conundrum that the very provision which likely mandates inclusion of these residents in our national dialog, also prohibits the very legislation which has the best chance of guaranteeing it. Davis is technically wrong on the case law, but correct about SCOTUS’ reluctance to interfere in political questions (PQ). As important as the Baker v. Carr decision was, but for Justice Brennan’s strong-arming, that case would have died in the valley of PQ as well. Do you actually foresee SCOTUS jumping in this political question?

  12. Plaintiffs in the District actually sued on grounds like this, arguing that denial of the vote violated the Constitution. They lost.

    An inequality that is written into the Constitution itself cannot constitute a violation of the equal protection clause. Adams v. Clinton, 90 F.Supp. 2d 35, 65-68 (D.D.C.)(three-judge court), aff’d, 531 U.S. 941 (2000).

    The equal voting requirement for the Senate itself constitutes a profound inequality, with the smallest state having the same vote as the largest. Other inequalities include the Electoral College, and, of course, the District Clause.

    I do not think it is a political question, in the sense of a question committed by constitutional text to one branch of government.

    It is more like a presentation clause question. The bill violates express language in the text of the Constitution, that is, that representatatives must be elected by the people of the several states. In the same way, the legislative veto was struck down because every bill passed by Congress has to be presented to the President. Other cases have arisen under the appointments clause. The Court has struck down efforts to evade its precise language.

    Both Turley and CRS have noted that an intermediate step like this could be done by constituional amendment. While the states rejected an amendment with 2 Senators and a Rep, they might approve a single rep. Sadly, that would likely be the end of the road, not a intermediate step.

    The problem with the Art V amendment process is that the 13 smallest states, with a 10th of the population, could and have blocked representation favore by a large majority.

  13. For context: In California, each US Senator represents 18 million people. In Wyoming, each Senator represents under 300,000, about half of what’s needed for a House district in 2008. Washington DC has a population slightly higher than Wyoming.

    I don’t have a developed opinion on representation for the residents of Washington DC. Based on the constitutional abuses of the last 8 years, however, I would be strongly inclined to support JT’s approach.

    That said, I am absolutely in favor of significantly increasing the number of representatives at the federal level. How much more accountable would government become if people actually knew their Congressman? Is this a fantasy?

    It’s no wonder that one has to be rich to run for office to nearly a million people… nor is it surprising that politicians try to be all things to all people in order to get hundreds of thousands to vote for them. Our current situation has spawned a system of theft from taxpayers by interest groups who provide money to these lifer “representatives” in order to be sure that they stay in power and keep the federal contracts coming.

    http://www.thirty-thousand.org/index.htm

  14. Vince:

    Gotta agree with your recitation of the holding in the Adams case, but I can certainly question its logic. Reminds me of Justice Jackson’s famous observation of the Court, “We are not final because we are infallible, but infallible only because we are final.”

  15. From today’s Washington Post:

    QUOTE ON Rep. F. James Sensenbrenner Jr. (R-Wis.) asked witnesses whether a decision by lawmakers to add a House seat for the District could lead to a similar move in the Senate. Republicans worry that a gain of two D.C. seats in the 100-seat Senate would give Democrats a significant advantage.

    Viet D. Dinh, a former assistant U.S. attorney general in the Bush administration, said that might not be possible because of different wording for representatives and senators in the Constitution. But Jonathan Turley, a professor at George Washington University Law School, said the phrases are not that different.

    Turley said he finds it “incredibly offensive” that D.C. residents don’t have a voting member of Congress. But he called the bill “flagrantly unconstitutional.” He said the bill violates the constitutional provision that the House be composed of representatives of states. The District is not a state, he said.

    Dinh said that provision had to be balanced against a clause in the Constitution allowing Congress sweeping control over the District.

    “I do think the Supreme Court would uphold it,” Dinh said, referring to the bill. UNQUOTE

  16. The Founder’s principles of full suffrage were clearly laid out by George Mason in the Virginia Declaration of Rights, June, 1776:

    “6. That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good. ”

    Those rights of suffrage are timeless, indestructible, INALIENABLE; ie, innate, inherent, intrinsic. They cannot be bought, sold, taken away, or traded, whether for a bowl of pottage or for freedom from taxes. At most, they may go unrecognized or disrespected…that is what has been happening for the last 200-plus years with regard to DC.

    Please note also, that Senator 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.

  17. 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.

  18. “[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)

  19. 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!

  20. 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.

  21. 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

  22. 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.

  23. 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.

  24. 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.

  25. Srory, I realize I “promoted” Steny Hoyer to Senator. Substitute Mikulski or Cardin if you will. Won’t change much.

  26. 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.

  27. […] Voting Rights for the District of Columbia I fully support the proposition that the District of Columbia should have a voting member or members in the House of Representatives. I also believe that they should have voting representation in the Senate. However, I do believe that the legislation currently in the Senate is unconstitutional. I don’t really want to wade into that debate, for that I will point to Constitutional Law Professor Jonathan Turley. […]

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