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.