Here is today’s column from USA Today. Yesterday, the D.C. Vote bill was temporarily pulled from the floor due to the threat of an gun rights amendment. The NRA has threatened to “score” the vote — meaning that members who vote against it would be given a lower score in the annual rankings. This is only a temporary withdrawal as Democrats scramble to deal with the challenge. A similar amendment passed in the Senate after being introduced by Sen. John Ensign of Nevada by a comfortable margin.
D.C.’s speed bump: the Constitution
Congress’ effort to give District a vote is misguided, dangerous
By Jonathan Turley
The expected passage this week of legislation to give the District of Columbia a vote in the House is understandably a matter of great celebration for Washington residents. It is far less of a celebratory moment for many constitutional scholars. In passing this bill, Congress will commit a premeditated unconstitutional act of ignoring the clear text and history of the Constitution to create a new form of voting member. For the first time since the founding of the Republic, members will claim the authority to allow non-state representatives of its choosing to vote in Congress.
There is little debate that the voting status of Washington is obnoxious and should be corrected. Nonetheless, the great wrong done to District residents cannot be righted by violating the Constitution. In 1977, Congress proposed an amendment to give Washington full voting rights like a state. It failed. Now, unable to amend the Constitution, Congress seems resolved to simply ignore it.
Under Article I Section 2, the Framers mandated that “the House of Representatives shall be composed of members chosen every second year by the people of the several states.” The term “several states” in this clause has been read by the Supreme Court and supporters of this bill as meaning actual states. The District was created with the express purpose of being a non-state entity.
That should end the debate, but advocates hope that Congress’ plenary authority over the District might trump provisions like that Composition Clause — an absurd notion for many constitutional scholars. While the District Clause is part of a relatively minor provision dealing with forts, installations and territories, the Composition Clause is one of the cornerstones for the entire legislative branch. To trump the Composition Clause would be akin to a dingy sinking a battleship.
The Framers’ thinking
Although some might find their reasons incomprehensible today, the Founders had reasons for wanting a capital represented by Congress as a whole instead of a single representative. In 1783, Congress was forced to flee Philadelphia by an angry mob of Revolutionary War veterans demanding their long-overdue back pay. When Congress called on state officials to call out the militia, they refused. The Framers were intent on never relying again on any state for their protection. They also did not want any individual member to have the singular honor or the authority to represent the nation’s capital. The control and representation of the capital would be shared by all the representatives.
The implication of this compromise was obvious and not uniformly popular at the time. Indeed, no one less than Alexander Hamilton proposed an amendment to guarantee voting rights for the capital’s residents. He lost. Others soon came to dislike the arrangement. The original District was a diamond shape (surveyed by George Washington) composed of ceded territory from Virginia and Maryland. Soon after ratification, Virginians chose to “retrocede,” or return, to Virginia. Notably, the remaining District residents rejected retroceding to Maryland, choosing the benefits of being capital residents over being conventional constituents.
A destabilizing precedent
Political convenience has overridden constitutional principle. To sell this ill-conceived plan, sponsors resorted to trading a new vote for the “red” state of Utah for a vote for the “blue” District. To their credit, some Utah delegation members denounced the bill as unconstitutional. In doing so, Congress will create a second constitutional problem by creating an “at large” district in Utah (to avoid forcing members to hold special elections for newly configured districts). The result is that Utahans will be the only citizens represented by two House members — their original lawmaker plus an at-large representative — in violation of the constitutional concept of “one man, one vote.”
What Congress is about to do is dangerous and destabilizing. In claiming the inherent authority to create a new form of voting member, future Congresses could manipulate the voting rolls by creating new seats for any other territory or reservation. For example, Puerto Rico (with a population of 4 million U.S. citizens) would have equal claim to six seats.
I, and others, have put forward plans that range from retrocession to a constitutional amendment. If our Constitution is a covenant of faith among citizens, it is nothing short of a constitutional sacrilege to change the very structure of Congress to avoid seeking a constitutional amendment. In a nation committed to the rule of law, it is as important how we do something as what we do. The Washington vote legislation is an unworthy means to a worthy end.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s board of contributors. He has testified at the hearings on the D.C. vote in both the House and the Senate.
USA Today March 4, 2009
Bob,
In retrospect, “sacrosanct” was not the best word choice.
Bob,
“Never assume the existence of particular power in any sovereign; always check the math.”
Most assuredly.
Buddha,
Never assume the existence of particular power in any sovereign; always check the math.
And Bron, if you’re reading, this is not just a conservative method of constitutional analysis but THE ONLY WAY to begin analyzing any constitutional issue.
And if you might be wondering “but what does Immanuel Kant have to do with this” simply put, Immanuel Kant always began and built his analysis with a form of the question “WHAT MUST BE TRUE.”
And that’s all I’ve got to say about that.
Bob
P.S.
BTW Bron, not only am I an avid defender of State’s Rights, but I can show why New York State truly deserves the title “The Empire State.” (See NYS Constitution 1777) 🙂
Excelsior!
There is a huge difference between evolving and throwing the baby out with the bath water. As far as I’m concerned, the Articles are sacrosanct, but the framers made amendment difficult with good reason just as they made it an available option for good reason. It’s like skinning a building. Modifying the appurtenances is sometimes required for proper function as circumstances change, but if the frame is solid, don’t monkey with it. The Articles are clearly the frame and a damn good one too.
FFLEO:
I look at it as a document of principles to apply in a given circumstance, like geometry you can have any triangle and figure out its area and sides with a couple of equations. It does not matter what size the triangle only that it is a triangle. So to the constitution and bill of rights, in my mind it is a set of principles to apply in any legal circumstance.
Parsimoniously paraphrasing Thomas Jefferson, I think that he considered the U.S. Constitution to be a dynamic document of *ideals* rather than a stale, static and constrictive parchment of ‘ideas.’
No, I aint no lawyer, but I aint no Yoo-like “anti-lawyer” neither…
my question to the lawyers from a laymans perspective:
the founders were very smart even brilliant men, they were for the most part classically educated (greek, latin, etc.) they knew how to use the english language and wrote the constitution, bill of rights and the declaration in clear language.
In my mind the constitution, bill of rights, declaration are a set of principals to apply under any legal circumstance. And maybe this has to do with my backround in math but the laws of multiplication and addition cannot arbitrarily be changed and yield the original intent of the theorem.
Why then do we find it necessary to, through judicial review, change the constitution? Why is it so hard to use the constitution as it was written to address legal issues of today?
We have been adding and subtracting adequately for a couple of thousand years. In my mind every time a court sends down a decision the further we get from the original intent.
For example, the founders could never have anticipated the internet but the first amendment should apply to the internet as easily as it does to an 18th century pamphlet and the electronics arent they the same as canals were back then? Anything can be broken down into its elementary constituents and principles applied. So why do many think the constitution is an “evolving” document?
Bob,
Interesting take.
I’ll have to let that simmer a bit before I’ll comment further.
Mespo,
Is it your contention that the sovereign state of Maryland or the Federal Government were ever empowered to disenfranchise the people situate on the land k/f/k/a part of Maryland, their heirs, successors or assigns?
Or might such an action be rightly deemed an exercise of power beyond right which no one had a right to?
Mespo,
Is it your contention that the Organic Act of 1801 was constitutional?
Bob:
“…it [the Constitution] was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion.”
********************
I think Jefferson meant mind in the “present” sense and Jefferson’s words present no contradiction to me.
Mespo,
“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.” — (Letter to William Johnson, June 12, 1823)
I’m gonna venture a guess that Jefferson had no intention of contradicting what he set forth within the Declaration with that one.
“[The] object of the Declaration of Independence. Not to find out new principles or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms to plain and firm as to command their assent, and to justify ourselves in the stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular or previous writing, it was intended to be an expression of the American mind, and to give that expression the proper tone and spirit called for by the occasion. (Thomas Jefferson, letter to Henry Lee, 1825)
Apparently his home state was in agreement:
“There are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty; with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.“ Virginia Ratifying Convention, Proposed Amendments to the Constitution, 27 June 1788, (Extracted from Kurland, “The Founder’s Constitution,” p. 15)
Excelsior!,
Bob
Professor Turley, Mike Appleton, et. al.:
“In passing this bill, Congress will commit a premeditated unconstitutional act of ignoring the clear text and history of the Constitution to create a new form of voting member. For the first time since the founding of the Republic, members will claim the authority to allow non-state representatives of its choosing to vote in Congress.”
I beg to differ; and here’s the short of it:
The constitution has nothing to do with enfranchising or disenfranchising the people residing on the land formerly known as “Part of Maryland”
The truly unconstitutional act was the Organic Act of 1801.
To begin, sovereignty runs with the land; period. This has been the case from feudal times up to the present; e.g. the entire theory of eminent domain. (See ‘Nichols on Eminent Domain,’ Section One)
Accordingly, the federal constitution is not controlling in all matters. “The attribution of supremacy to the Constitution on the ground solely of its rootage in popular will represents a comparatively late outgrowth of American Constitutional theory. Earlier the supremacy accorded to the constitutions was ascribed less to their putative source than to their supposed content, to their embodiment of essential and unchanging justice.” (
i The ‘Higher Law,’ Background of the Law of Eminent Domain,
6 Wis. L. Rev. 67, 68 (1931)
In 1776, Maryland (along with 12 other colonies) appealed “to the Supreme Judge of the World for the Rectitude of [its] Intentions, [and did], in the Name, and by Authority of the good People of [Maryland] solemnly published and Declared [Maryland] to be Free and Independent; that [it is] absolved from all Allegiance to the British Crown, and that all political Connection between [it] and Great-Britain, is …totally dissolved; and that as a FREE AND INDEPENDENT state it has
full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which INDEPENDENT [SOVEREIGN] STATES may of right do.”
By signing on to the Declaration (a/k/a ‘preliminary subdivision plat against tyranny, a condition precedent to Pleasing Divine
Providence in an action to subdivide the land of King George by prohibiting tyranny from all land situate therein), Maryland not only Declared its sovereign independence from the crown, but all those 13 colonies subdivided sovereign title of said land into 13 distinct estates of sovereignty, or States.
In drafting The Declaration Of Independence, Thomas Jefferson relied on the Equitable Principle of Appealing to “The Higher Law,” in deducing his Lockean/Equitable justification for a proposed subdivision with the Crown. This was nothing new, since “[Appealing to the Equitable Principles of The Higher Law] was the theory of the Declaration of Independence and of the leaders of the American Revolution goes without saying, and through its acceptance by the American bench and bar it became the guiding theory in the development of the principles of our constitutional system.” id at 68
Jefferson’s appeal the “Higher Law” as a means of redress and remedy was by no means unique. In fact, it was “the theory of Plato and Aristotle; of Aeschylus, Sophocles, and Euripides. Through the Stoics, it found its way into Roman Jurisprudence, where it was welcomed as an explanation of the jus gentium, and was championed by the greatest of Roman jurists, including Gaius, Ulpian, and Cicero. Of almost universal acceptance during the Middle Ages, it became, primarily through the writings of Grotius, an explanation of, and a sanction for, international law, very much to the later’s benefit.”
i (id)
Cession of sovereignty, from ‘the People of the State of Maryland’ to ‘Maryland’, subject to the Declaration, established a DEFEASIBLE ESTATE OF SOVEREIGNTY within the State of Maryland and a possibility of reverter vested INDEFEASIBLY within THE PEOPLE. The People’s right of sovereign reverter is not only a
logical consequence of the formation of the social compact, but a necessary keystone to the structure and formation of this republic.
The Organic Act of 1801 was by definition an ‘execution of power, beyond right, which no one had a right to’; and therefore tyrannical. For neither the constitution of Maryland nor the Federal Constitution contained a specifically enumerated power to disenfranchise the people situate on the land k/f/k/a part of Maryland, their heirs, successors or assigns.
And that’s all I’ve got to say about that for now.
Excelsior!
Bob
This issue reminds me of the Civil Rights Movement of the sixties. Every thinking person said racial discrimination was an evil anomaly from our past but the legislatures stood idly by, lamenting the perceived opposition of the Constitution and entrenched state law. The Warren Court found an interpretation to correct the evil much to their credit. We all respect the Constitution and its profound effect on our lives, but as we do with our family, we must admit when it is foolish, short-sighted, or plainly wrong. It is our duty to amend it or correct it through the operation of law, lest we become slaves to cellulose. I think this is what Congress intended to do, albeit clumsily. I hold them in no ill-regard for the effort.
“Though we may say with confidence, that the worst of the American constitutions is better than the best which ever existed before in any other country, and that they are wonderfully perfect for a first essay, yet every human essay must have defects. It will remain, therefore, to those now coming on the stage of public affairs, to perfect what has been so well begun by those going off it.”
–Thomas Jefferson to T. M. Randolph, Jr., 1787.
Well Buddha, to paraphrase something you say “One lives to be of service” I just provided you the service of not 1, but 2 ear worm songs….2 for the price of 1. Enjoy!
“Lovin’ You”.
Gak!
Thanks, FFLEO. Thanks A LOT!
Well . . . time to start humming the theme to “I Dream of Jeanie”.
But the rest of it’s not a bad idea. If you swear to protect something, you should demonstrate you understand that something.
After reading what Mike A. wrote, I think that all public servants within local, State, and Federal governments must be required to take the online ‘Professor Turley’s U.S. Constitution Remedial/ First-time Course’ that requires at least a C passing grade. Most will fail, but there will be Remedial Courses II, III, IV….The test will not be dumbed-down or graded on a curve, given the gravity of the subject matter.
Those refusing to take the test—or those who repeatedly fail the remedial RC XX’s—must listen to looped Barry Manilow tapes with ‘Copacabana’ played at an every-other-song interval coupled with preludes/interludes of Minnie Riperton’s ‘Lovin’ You’… La la la la la la la… do do do do do’s complete with that maniacal falsetto scream crescendo.
Rampant ignorance of the U.S. Constitution deserves the deployment of strong, swift, and permanent rehabilitative measures.
Professor,
Mike A said it for me with his summation “I am in favor of providing real representation [sic] to D.C. residents, but, as you have pointed out, there are several ways to accomplish that goal in a lawful manner. Congress should know better.”
MikeA:
in that vien of thought, I live in a county that I think goes overboard in land use restrictions. Not being a lawyer I would like to ask you and any other lawyers that may know a little something about takings.
We have what are called resource protected areas (RPA) that restrict a land owners right to build or use his property. For instance I had someone call me because they have a garden in the RPA and are now subject to fines and penalties because some of the top soil from the garden washed into their neighbors yard.
You cannot build anything within these RPA’s and so in my mind you are restricted from using your land to the fullest extent. These are not easements and no compensation has been given by the county for these areas.
Is this a violation of the constitution? As far as I know no one has ever challenged this in court. The county has done this through the states Chesapeake Bay Act which is to ostensibly save the bay.
Prof. Turley, I believe that your position on this is the only one that makes constitutional sense. The proposed legislation permits populism to trump the law. It is particularly ironic that this bill is moving forward at the same time that the Obama administration is grappling with ways to deal with the rampant lawlessness which characterized the Bush presidency.
In my experience, this is the type of legislative misconduct one usually associates with local government. The typical scenario is as follows: (1) in response to citizen complaints, a city council or county commission proposes an ordinance to regulate or prohibit some sort of activity (usually involving personal conduct); (2) the city or county attorney advises the body that the proposed ordinance is unconstitutional; (3) the ordinance is approved despite the legal opinion; (4) the ordinance is challenged and tens of thousands of tax dollars are spent in a useless defense; (5) a court strikes down the ordinance on one or more constitutional grounds; (6) the legislative body attacks the “liberal judiciary” for thwarting the will of the people.
I am in favor of providing real respresentation to D.C. residents, but, as you have pointed out, there are several ways to accomplish that goal in a lawful manner. Congress should know better.