Too Clever By Half: The Constitutional Argument Against the Current Voting Bill for the District of Columbia

The current legislation to give the District of Columbia a vote in the House of Representatives has no shortage of passion behind it. Indeed, after testifying repeatedly that this legislation is unconstitutional, I have felt my share of that passion turned to anger. It has been an ironic position for me, because I strongly believe that District residents should be allowed to vote in Congress and I have many close friends on the other side of this debate. Indeed, I supported greater (and permanent) representation — as opposed to his partial representation plan. To that end, I have published a lengthy law review article below explaining why I believe that the law is flawed and why there are better option for the city.

The article in our law review can be found here.

I still hope that we can have a civil and informed discussion of these constitutional issues as well as the alternatives to this legislation. This is really not a debate between those who want representation for residents and those who do not. It still matters how we do things and not just what we do. This approach was selected for political convenience after prior constitutional amendments failed. However, to secure the legislation, supporters have studiously avoided textual and historical sources contradicting their claims. It is neither necessary nor wise to do so — particularly when constitutional alternatives are readily available.

23 thoughts on “Too Clever By Half: The Constitutional Argument Against the Current Voting Bill for the District of Columbia”

  1. Professor Turley states:

    “In reality, this is not a debate between people who want District residents to have the vote and those who do not. There is universal agreement that the current nonvoting status of
    the District is fundamentally at odds with the principles and traditions of our constitutional system.”

    Unfortunately, this statement is grossly at odds with reality, and is such an overstatement as brings one to wonder about the esteemed Professor’s grasp on reality, and/or his naivete.

    Have you been reading any of the blogs lately, Professor?

  2. There is a renewed effort to get the bill to grant a single voting representative for the District of Columbia in the House of Representatives. For newcomers, there has been a lot of discussion in this and other threads on this topic, and JT is the author of the leading law review article from the GW Law Review. There should be more action in coming weeks.

    Voting Rights Could Move Forward on Defense Bill’s Back

    By Nikita Stewart
    Washington Post Staff Writer
    Saturday, October 17, 2009

    House Democrats have been considering a proposal that could get the District a full voting member in the House of Representatives by attaching it to a conference report of the defense spending bill.

    Majority Leader Steny H. Hoyer (D-Md.) acknowledged that he had heard “some discussion” of such a strategy when Rep. Kevin McCarthy (R-Calif.) asked him on the House floor Thursday to address a rumor about the potential action.

    Hoyer’s statements, which included passionate words about the rights of D.C. residents, revived the debate about D.C. voting rights Friday as the C-SPAN video and transcript of their exchange went viral.

    “The people of Baghdad can elect members of their parliament today because our young men and women, and some not so young, fought, and too many died so that the people of Baghdad could elect a voting member of their parliament,” Hoyer said. “It is somewhat ironic that in the symbol of democracy around the world, that our fellow citizens, some 600,000 of them, don’t have a voting representative in their parliament, the House of Representatives, the people’s House. . . . Now, whether or not that will be included in the defense bill, it is about democracy. It is about participation. It is about respect.”

    The move would be a twist in the ongoing fight over D.C. voting rights between Democrats and Republicans. Earlier this year, the D.C. voting rights bill appeared to be well on its way to being approved until the Senate and House passed a Republican-sponsored amendment that would strip the District of its gun-control laws.

    The defense conference report could come to the floor in the next few weeks.

    When McCarthy told Hoyer that he hoped they would get a “very clean” defense bill, Hoyer asked McCarthy to help him “do the same for the D.C. bill.”

  3. A local paper in D.C., the Northwest Current, has published my Viewpoint column on the DC voting rights bill. I added in links in [brackets].

    THE CURRENT, Wednesday, December 3, 2008, 11

    Voting rights bill may violate Constitution
    Vince Treacy

    The Current’s Nov. 19 editorial “It’s time for a vote” expresses support for the bill for a voting representative for the District of Columbia because it does not overreach and has a sense of bipartisanship.

    But the supporters themselves may be overreaching. Under the authority of the U.S. Constitution’s District of Columbia clause, the bill would give D.C. a single voting representative. The District clause is a supreme municipal power over capitol affairs, but it may not be a national power to alter the Congress.

    The bill falls far short of full representation, with no voice on treaties, cabinet officers and federal officials, Supreme Court justices, or the federal and D.C. judges who rule on every aspect of District life. Simple legislation in any future Congress could eliminate the representative. Given the drawbacks, it may be better to work patiently for statehood in the future.

    The scheme started out as a GOP idea to pre-empt any future demand for senators, while silencing the protests against taxation without representation. Rep. Tom Davis, R-Va., originated it, bolstered by an opinion from Viet Dinh, a former Bush Justice Department official. The Washington Post reported in November 2004 that a House Committee paid Dinh $25,000 for his opinion. Former Judge Ken Starr joined in.

    Rep. Davis was confident that Dinh had settled all constitutional questions, but Dinh met withering opposition from legal scholars, led by George Washington law professor Jonathan Turley. [] The nonpartisan Congressional Research Service also questioned the constitutionality of the bill. []

    The researchers suggested a constitutional amendment to provide D.C. with a vote, with a matching vote for Utah, contingent on ratification. Senator John Warner, R-Va., offered a similar approach. But DC Vote rejected it, confident that the solicitor general would defend them in court. That hope was dashed for 2008, at least, when the Justice Department opposed the bill in the House and Senate judiciary committees. Experts who supported the bill would only say it was strong enough to go to the courts.

    Del. Representative Eleanor Holmes Norton, D-D.C., gave her support to the bill, but in the Senate, Republican support, except from Utah, evaporated, and cloture failed. With Rep. Davis and Sen. Warner now gone, only Utah and the D.C. Republican Party remain in support, leaving little bipartisanship.

    The bill is likely to pass in 2009, but the new members might not be seated. Under the Constitution, the House is the final judge of the qualifications of its members. But a court may grant a preliminary injunction if it finds: 1) opponents are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) the injunction is in the public interest. The opponents seem likely to succeed on the merits. Irreparable harm would ensue if the new representatives were found unconstitutional, since it would question the validity of the laws they voted for. Supporters would suffer little harm by waiting until appeals were resolved. The public interest in maintaining the integrity of Congress could far outweigh a short delay.

    And, in the end, the bill may be held unconstitutional.

    That would leave the three valid means for full representation for D.C.: (1) a constitutional amendment; (2) retrocession with the express consent of Maryland; or (3) statehood. The amendment process was tried in 1978, and failed. Retrocession has never won the support of the people of Maryland, and the necessary approval of the Maryland legislature is very unlikely ever to occur. Even though Professor Turley believes that Maryland could be forced to accept D.C., he cites no authority for it and does not advocate it.

    While statehood may be deferred at present, the bill should immediately establish a National Capitol Service Area, limited to parks, federal buildings, and installations under sole federal control. This is to make it clear that the D.C. Delegate or member represents people, not buildings.

    Finally, a blue ribbon commission should be set up to examine the problem of voting representation for the District and all the territories in the light of the founding principle of our nation, that governments derive “their just powers from the consent of the governed.”
    Vince Treacy is a Spring Valley resident.

  4. The basic issue here is Consent of the Governed (taxation is just one aspect of being governed) . While the issue discussed here relates to the District specifically and primarily, the solution potentially relates to a wider circumstance. ANY circumstance of government without consent (as embodied in free, fair, and regular elections) constitutes a deficit in the legitimacy of the governing power. The size of the deficit in legitimacy relates to the extent to which the governed are denied the opportunity participate in the general consensus,by expressing their will to either grant or withold their consent toward the government and laws that rule them.

    This fundamental principle of Consent of the Governed trumps legislative and even constitutional provisions (“…whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it….”). When the principle of consent is violated consistently and persistently, “a decent respect to the opinions of mankind requires” that something be done about it. To ignore, to stall, to temporize, or to confine the endless debate to arbitary, unprincipled, and archaic provisions of “law” and “constitution” is unacceptable. Such provisions include the District clause, which was debatable at best when instituted (it is eeriely similar to the Declaratory Act of 1766, in arrogating to the national legislature an unlimited power “in all cases whatsoever” over an unrepresented minority of the nation), and whose purpose and necessity today is even much less compelling than it was in the late 1700s.

    Our Founders reccommended that in the final analysis we be guided by fundamental principles: “a frequent recurrence to fundamental principles” (Mason, Virginia Bill of Rights, Section 15); “A frequent reference to fundamental principles is absolutely necessary to preserve the blessings of Liberty,…” (Franklin); ” It was a principle in the Bills of rights, that first principles might be resorted to.” (Madison).

    We have corrected a number of situations over the years where laws and constitutional provision conflicted with and violated first principles: for example, counting non-whites as three-fifths, though “all men are created equal”; and refusing the vote to blacks, women, and young adults, though “all men are created equal”. Now we need to continue that process of creating a “more perfect union” by conceding that ” all men are created equal” and that they have certain inalienable (innate, inherent, intrinsic) rights, including that right of having the opportunity of consenting (or not) to the laws under which we all must live, EVEN if they live, whether by choice or happenstance, in the so-called District of Columbia.

    As it is, the Congress of the United States is not the Congress of DC denizens: they have had no voice or vote in it for over 200 years. The Courts of the United States are not the Courts of DC denizens, they have no say in the laws governing them nor the officers who enforce them; even the Constitution of the United States is hardly the Constitution of DC denizens, since they have had no say in Amendments 12 thu 27.

    This is the grievous problem of legitimacy, and of alienation, disillusion, and disaffection, that eats at the heart of the nation’s capital. DC denizens have not abandoned their country…they have been cast out, for the flimsiest of reasons. Failure to deal with this issue in a most timely fashion gives the lie to the noble concepts on which the nation was founded, such as the Motto on the building housing our Supreme Court, “Equal Justice Under Law”.

    This is a problem that transcends words and discussions of Law and Constitutionality, and goes to the heart of actions (or the lack of actions) on Principle.

  5. Thank you both for the clarification.

    For what it’s worth, I agree, the alternatives should be explained locally and the debates should be heard nationally.

    These are no small issues, obviously, and you now have my attention.

  6. Vince:

    The issue of consent is certainly open for debate. I do not believe that retrocession requires consent, but I also do not advocate such a plan without it. The problem is that leaders have never truly presented the question to Maryland citizens. There has always been opposition from political figures who prefer easier solutions that the current bill — despite its constitutional flaws.

    What is most striking is the refusal of the sponsors to take up people like Sen. Warner on his suggestion of a constitutional amendment mirroring the legislation. It may also be possible to use such an amendment to deal with the equally glaring problem of the status of Puerto Rico, where 4 million citizens remains in limbo. The point is that alternatives have never been explained or fully presented to either the residents of D.C. or Maryland.

    Thanks again for your comments.


  7. Please reread. Only 20 percent support retrocession as a solution. The vast majority of DC residents support statehood or a constitutional amendment giving full representation in the Senate and House, and most support at least a single House voting representative.

    DC residents brought a lawsuit seeking to be declared residents of Maryland for representation, just as you suggest, but the courts rejected it. So that idea has been tried and failed.

    Please be advised that the American voting public is the ONLY body that has a say in this matter, since it must approve any measure, either by constitutional amendment or by legislation to provided retrocession or statehood.

    Despite the principle of the consent of the governed, DC residents have no say at all. Under Professor Turley’s plan, the residents of Maryland would have no say at all (except by individual Senators and Representatives) in the return of DC to MD.

    So the interests are democracy and government by consent. It is in the interest of all Americans that all Americans (We, the People) be fully represented in the national legislature. If there is a problem with that, so be it.

  8. Excuse me for intruding, but what is the the interest here?
    Where do ‘we’ want to get and who is ‘we’?

    I’m not being flip – 6B is a lot o’coin!

    If your stats are correct ie that 20% in both DC and Maryland even care, who’s making all the noise?

    How would it work if a DC voter just declare him/herself, for representation purposes only, as “Resident” of MD, VA, or essentially ‘Undecided’ as DC, by PO assigned number or similar ID, locking-in for the length of the respective Legislative term(s), and then seeing if the numbers constitute further representation in either state, or none, that way?

    Does the American voting public, generally, have an interest or get a say?

    Did anyone ask?

  9. To deeply worried. HR 1858 would likely be constitutional if enacted since it reqires Maryland’s consent. If Maryland did not consent, then the District would simply remain under the [heel of] authority of Congress as it is now, as a crown colony of the United States of America.

    It is worth repeating that no more than 20 percent of MD voters have ever expressed support for any form of retrocession. No more than 20 percent of DC residents support it. It would not even begin to comport with the consent of the government, or with government of the people, by the people, and for the people.

    So the retrocession bill deservedly die in committee because they are empty gestures.

  10. for those interested H R 1858 deals with this topic. It joins a long list of retrocession bills that have died in committee. The text seems to be a rehash of the 2003 H R 381.

    At issue is Sec 7, that provides for the voters of Maryland signing off on the retrocession. Note the language does not stipulate what happens if the voters do not sign off. The boundaries of the remaining Federal area are much as Professor Turley wrote on.

  11. As a GW law review alumnus, I am happy to see your brilliant views on DC representation, including your total dismantling of the Dinh-Starr scheme, now added to the permanent scholarly literature of the law for all time.

    I agree with you that immediate steps should be taken to divide the populated district from the unpopulated capitol district of offices, parks, and inanimate statues.

    I think, however, that you completely gloss over the need for Maryland’s consent to any form of retrocession.

    There is an express clause barring the forming or erection of a new state within the jurisdiction of an old state without its consent. But while there is no similar express clause requiring a state’s consent for retrocession, I do not see how a compulsory addition of territory to an existing state comports with the concept of the consent of the governed that is implicit under the Constitution.

    In Texas v. White, 74 U.S. 700, the Court said that a state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.

    I see four elements here: the free citizens, the boundaries, the constitutional government, and the consent of the governed. I think that a forced retrocession violates all four of these elements because it would irreparably alter the boundaries and constitutional government of Maryland without the consent of its free citizens.

    The people of Maryland consented to joining the United States under the old boundaries when they ratified the Constitution. Their legislature consented to new boundaries by retroceding some land to the federal government. How can that land and its peoples now be reassigned to Maryland (or to any other state for that matter) without its consent?

    Why not solve all our territorial problems the same way? Try adding Puerto Rico to New York, the Virgin Islands to Florida, and American Samoa and Guam to Alaska (to give it some warm weather counties). I think this necessity was implicitly recognized when Virginia’s consent was sought for the retrocession of Alexandria.

    Most retrocession schemes are a flawed remedy for a major violation of the principle of the consent of the governed, as embedded in the Declaration of Independence and the Constitution, with respect to the District and all of our territories. Many people simply say that DC should be given back to MD, smugly assuaging their consciences, while not knowing or not caring that this is an empty gesture as long as Maryland is firm in its opposition. It is a lot like the proverbial munificent bequest in the poor man’s will.

    As a practical matter, no retrocession will ever take place without Maryland’s consent. All polls show that no more than 20 per cent of Marylanders would approve it. As a matter of comity, no members of Congress are ever likely to force a member State to accept territories or peoples without its consent. So it is just so much empty speculation.

    Finally, these elaborate retrocession proposals blithely ignore the consent of the governed people in the District itself. They never seem to dignify its residents with a referendum to approve or disapprove any propose retrocession.

    The constitutional means for representation in DC are limited to constitutional amendment (which could in fact be limited to one House voting representative), retrocession with the approval of the Maryland legislature, and statehood.

  12. Deeply Worried:

    You are precisely what this site is about. Well, . . . you and open pandering of prior columns.

  13. JR & JT,

    I post promiscuously to everything, but when I read JR’s post above I held back my 2 pfennigs worth of uninformed prattle. It was recognizably legal thinking going on and that’s rare here.

    I sometimes wonder if this site was intended precisely for such posts and such analysis and that we the posters have fallen short in offering our various jeremiads and bromides.

    Thanks JR for showing us the bar to which we should aspire.

    And thanks JT for creating this environment of discourse, even though it may often fall below the level you hoped for when creating it.

  14. First, JR, that is terrific analysis and I hope that you can work out the details with financial aid to come to GW. Tell them that you claim a ten percent discount as a regular to the website.

    YOu are correct that the most significant element will be the question of who can get judicial review. The courts have previously reviewed such composition questions — such as over term limits. Moreover, many of us do not accept that “both the district and the qualification of Congress members” are entirely within the authority of the Congress. There remains some capacity for review when Congress seeks to change the delicate structural balance of Congress.

    The most serious question is standing. Privately, many members who voted for the bill have told me that they also question its constitutionality. Indeed, one member of the city council told me of such doubts. However, advocates are hoping that they can prevent review by challenging the standing of anyone trying to raise these constitutional flaws.

  15. Prof. Turley, I may be one of your students this fall (still waiting to hear from financial aid if GW is going to be affordable or not for me), so I decided to try and wrap my head around the article prior to experiencing that always-important step in ones legal education of getting my ass kicked up and down the classroom by someone much better trained and better versed in the subject. So when I respond, please recognize that I ain’t yet been schooled enough, and show a bit of mercy. 🙂

    The thing that I seem to be tripping up over is the argument you cite from McGinnis and Rappaport about the Composition Clause, and how that squares not only with the District Clause, but with Article I, Section 5.

    It seems to me that, should the two houses decide to create offices for DC representatives, and endow those offices with full voting privileges, then the issue shouldn’t be justiciable. The District Clause clearly establishes Congress’s primacy, and Art. I sec 5 seems to take the courts out of the equation entirely.

    Since matters concerning both the District and the qualifications of Congress members are both pretty clearly within Congress’s authority, should the courts even take up the issue? Isn’t this an issue on which that the courts should defer to the Legislative branch?

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