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
Thank you to all that took the time to reply to my question(s).
Your thoughtfulness is appreciated.
Got to side with Bob there. SCOTUS really screwed up when they appointed the President. But thanks to the above postings, I now truly understand the depth of loathing Bob carries for Scalia. Not that Scalia doesn’t deserve it.
Vince Treacy:
Article III did not give the Supreme Court any textual power of Judicial Review. Furthermore, Article III did not give the Supreme Court the power to revise or expand its own power to include Judicial Review without a Constitutional Amendment (e.g. Marbury, Hunter, Cohen, etc.)
Let’s examine one example of what Bron might be worried about.
My mind drifts back to the afternoon of December 9, 2000 when Lord Scalia and cadre issued a certain Stay:
Article III did not give the Supreme Court the power to override Article II through injunctive relief or otherwise. And Article
III did not appoint the Supreme Court as the People’s proxy or attorney in fact, nor did it declare the People incapacitated and appoint the Court as their Guardian to select a President for them.
Yet what happened? That’s right, the Court acted as if Article IV’s guarantee of a republican form of government didn’t exist and made Madison and Hamilton roll in their graves by violating the separation of powers doctrine at the highest level possible.
Mespo,
To paraphrase Rick from “Casablanca”
“When it comes to constitutional analysis, you’re a true democrat.”
Personally, I consider the ‘true democrat’ approach to the constitution to be one of the primary causes for the horrific decisions in Griswold on both sides of the bench.
mespo,
Got to love that Churchill. 😀
Bron,
In short, case law or common law figures into the equation because times and situations change. There are three ways to make a law. Legislation, executive action and common law. The way common law works is kind of an efficiency matter. When a court is presented with facts that are similar to a past adjudication, they are bound to follow that earlier decision by stare decisis. Stare decisis is the principle that you should stand by a ruling that has already been decided. Now the ruling part is important, because the principle of stare decisis applies to rulings only, the “what” of a case, but not the “how” or the “why”. How and why change and thats how matters of first impression end up before the court. You can see how this retention of rulings is an efficiency.
A large part of the conflict arises when case law interacts with legislation and regulation. As to why is it used here, common law is the English tradition and it’s used in many parts of the world where the English used to hold sway.
Contrast this with Civil Law, based in the Napoleonic tradition, which is in fact used in Louisiana to this day. This tradition is rooted in the Roman’s Corpus Juris Civilis and the Code of Justinian, but it is essentially the codification of case law. A distillation. Critics of the civil law approach think this ossifies the law, but I can tell you from experience that is not the case. It’s just a different, but equally valid, method of retaining accretions of wisdom from previous decisions. It also makes the law a bit easier to access IMHO. But both English common law and Roman civil law are examples of case law systems only really differing in methods of collection and application (you’d cite Code instead of a case).
The other two major structures are socialist law and Islamic law. Some argue that socialist law is merely case law seen through a command economy lens as practiced by the Soviets. While I tend to agree with this, I’ll have to say my exposure to Soviet law is minimal. Any Soviet law experts out there, feel free to chime in.
Islamic law . . . do I really need to go into what’s wrong with that system? Aside from being based in a religious document, it’s incredibly intrusive and inflexible. Sharia is an evil upon the world. Think of what would have happened if the RCC had been responsible for determining the law. Well, actually, you don’t have to imagine the consequences, just look at the Inquisition. Thankfully, Canon law did not take hold in Europe the way Sharia took hold in the ME. Books of religion are horrific bases for a legal system.
I hope that answers your question.
Bron98:
“…but I believe that the constitution is a set of principles laid out for a civil society to follow and should be strictly ahered to and changed only through the amendment process.”
****************
A little wisdom from a fellow who knew a little about constitutional democracy:
“Rules are for the guidance of wise men and the obedience of fools.”
–W.S. Churchill quoting WW2 fighter pilot Douglas Bader
Bron, the authority for case law is in the words of the original Constitution itself.
Art III, section one states “The judicial power of the United States, shall be vested in one supreme Court….”
Sec. 2 states that the “judicial Power shall extend ot all Cases in Law and Equity arising under this Constitution….”
Sec. 2 also gives the Supreme Court original or appellate jurisdication, depending on the parties to the case.
Read these together. The Constitution itself uses the word “cases.” If a case arises that involves the meaning of the Constitution, it is covered by the judicial power. The Supreme Court has jurisdiction to resolve the case, and to do this it has to determine the meaning of the Constitutionalk provisions applicable to that case. Art VI makes the Constitution the supreme law of the land.
So the concept of case law interpreting the Constitution is built in to the Constitution itself.
Bobesq:
I read the charter of liberties and priveledges from 1683 and have not yet read the one from 1777. While not the first constitution of New York I was impressed by the fact that a number of sections were similar to the federal constitution.
Thank you for the idea and I will try and read the 1777 constitution today.
here is a link to New York’s charter of liberties and priveledges from 1683 if anyone is interested.
http://www.montauk.com/history/seeds/charter.htm
Mespo:
But as Buddha said above we can change the constitution through amendment and I have no issue with that as it is part of the original document. My concern is that the constitution has been battered by judicial review and case law.
If I were a judge I would go to the original document to look at what priciples would apply in a particular case and read the thoughts of the founders. It could be my ignorance that causes me to think this way, but I believe that the constitution is a set of principles laid out for a civil society to follow and should be strictly ahered to and changed only through the amendment process.
Why has case law become the law of the land? In my mind it is like making lemonade, the initial serving is good but if you keep refilling the pitcher with water with a little lemonade left in the bottom at some point you are drinking water.
Mespo,
Quick note:
I fail to see how the element of intent has any bearing on the determination of whether an act is unconstitutional.
One could argue, however, that the act was NON-constitutional; which brings us back to the Lockean definition of tyranny.
Such acts, if one were to adopt the UCC 2-207 knock out rule of analysis, would negate certain portions of the constitution itself; e.g. the 3/5th’s compromise, the fugitive slave clause, etc. since they all represent exercises of power beyond which nobody had a right to.
More later,
Bob
Bron98:
“I see that our constitution was largely based on New Yorks which was largely based on British law. Thank you for the link very interesting. The founders had a template and all this time I thought they had pretty much done it from scratch.”
Bron,
I didn’t say our constitution was based on New York’s and I apologize if I gave that impression. If you looked up the New York Constitution of today and found similarities that was due in no small part to dual federalism.
What I was trying to point out is that the State of New York adopted and made law the entire Declaration of Independence and has carried it over through all amended Constitutions to the present.
Significance? Huge. The Declaration, i.e. the restatement of social compact, bring equality and an irrefutable bedrock of individual rights to the forefront and not subject to further amendment.
“The Declaration was and is a legal instrument, a juristic act of ultimate solemnity, effecting the most fundamental constitutional change, a change in the very source and foundation of law. It is par excellence constitutional. It is our one legal document on which all else rests. It enunciates the theory of law, of ultimate constitutional law, on which the signers based their claim of power and right to effect this great legal-constitutional change. The force and thrust of the [the Second Paragraph], as a permanent commitment of the nation, must be appreciated in that light.” (Charles L. Black, One Nation Indivisible, 65 S.J. Law Rev. 27 (1991))
On the Federal level, the same is accomplished via the restatement of social compact combined with the Ninth Amendment and the P&I clause of the 14th Amendment.
The beauty of New York is that it acted as a defacto recording office for our “Declaration of Covenants and Restrictions Against Tyranny” by including it in their first Constitution word for word; and thereby, via the magic of the equal footing doctrine, making it applicable to the other 12 original colonies.
Well, it’s 6am, I need coffee.
SIYOM,
Bob
Bob,Esq:
I think the DC Organic Act was not unconstitutional merely poorly considered and incomplete. As you know, DC residents could vote for their representatives from 1790 to 1800 by virtue of their citizenship status in the two respective states. The Organic Act of 1801 simply forgot about these citizens and as Professor Dihn says disenfranchised them “by historical accident.”
I quote from the ABA position paper on the topic:
“The same constitutional authority was exercised by the very first Congress, in 1790, when
Congress accepted the cession by Maryland and Virginia of the ten-mile-square area constituting
the District and provided by statute that its residents would continue to enjoy the same legal
rights – – including rights to vote in federal and state elections – – which they had possessed under
Maryland and Virginia laws prior to acceptance by Congress of the Cession. Act of July 16,
1790, chapter 28, section 1, 1 Stat. 130. Under this federal legislation, residents of the District
were able to vote, from 1790 through 1800, for members of the United States House of
Representatives (and for members of the Maryland and Virginia Legislatures, which then elected
United States Senators).
Voting representation in Congress for District residents ceased in 1801, when the District of
Columbia became the Seat of Government, and Congress enacted the Organic Act of 1801,
which provided for governance of the nation’s capital but which contained no provision for
District residents to vote in elections for the Congress that had the “exclusive” power to enact the
laws which would govern them. Since the 1801 Organic Act also had the effect of terminating
District residents’ right to vote in any elections held in Maryland and Virginia, they were left
disenfranchised from voting for Members of Congress.”
The legislation seems thus defective in that the rights of those citizens were not considered. If we interpret that as disenfranchisement, then of course the Act is unconstitutional. If however, we deem the Act a product of legislative mistake or oversight,it seems to me Congress has every right to cure the legislation to make it constitutionally sound and thereby correcting this historic and historical injustice. So to answer your question directly, it all depends.
Bob,
Thanks! I’ve learned a couple of new things today. Excelsior indeed.
Thanks to Mike Appleton, Mespo72, and Bob, Esq. Your lawyering perspectives make this discussion especially educational and informative.
Brom98:
“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?”
************
As Bob,Esq is apt to remind us, all legal documents, indeed all legal opinions, rest on certain historical assumptions. For example, when written, the Constitution afforded slaves 3/5 the value of freemen in counting population. Also the voting franchise was originally accorded only to male landowners. As the nation developed, these assumptions gave way to the social dynamic, and the law followed suit. Sometimes, as in the Civil Rights Movement the law led, but only reluctantly after the legislature abdicated. Even so, without the great Civil Rights legislation spurred by the Supreme Court cases, I doubt the Movement would have the profound effects that it did have. This is a roundabout way of saying that law is unlike the precise, logical tenets of mathematics. Rather it is more organic and hence human, with starts and stops, often times mirroring the erratic social progress. Though based in reason, the law must adapt and even occasionally recede as Cicero famously said, “When the reason for the law disappears, the law disappears.”
As I noted in an earlier post, it took almost 200 pages to solve de Feramt’s puzzle because mathematics progresses in efficient, linear and logical steps toward its inevitable conclusion. Our Constitution was designed for an expanding nation and population but took only took 6 pages including the base text, Bill of Rights,and the transmittal letter. It is framework not facade,and we are left to renovate it every so often as necessity and, as here, conscience dictate.
I like Justice Felix Frankfurter’s definition of law:
“Future lawyers should be more aware that law is not a system of abstract logic, but the web of arrangements, rooted in history but also in hopes, for promoting to a maximum the full use of a nation’s resources and talents.”
As those hopes change, so does law.
Bobesq:
I see that our constitution was largely based on New Yorks which was largely based on British law. Thank you for the link very interesting. The founders had a template and all this time I thought they had pretty much done it from scratch.
A toast to New York
Now I just have to figure this Kant fellow out!
FFLeo:
“No, I aint no lawyer, but I aint no Yoo-like “anti-lawyer” neither…”
*********
Regardless of who signs our paychecks we are all about the business of insuring that our freedoms outlive us. To that extent, welcome to you and all the others here to the Bar.
Buddha,
I posted a quick form of Deed or chain of title if you will; it had a few links to such things as the Treaty of Paris and the Declaration so it’s being looked at by the moderators.
Buddha,
The chain of title runs something like this:
Form No. http://www.yale.edu/lawweb/avalon/diplomacy/britian/paris.htm
THIS INDENTURE, made 3rd day of September, 1783 between
His Britannic Majesty,
party of the first part, and
THE PEOPLE OF THE 13 ORIGINAL COLONIES, BY THE GRACE OF
GOD FREE AND INDEPENDENT
Parties of the second part,
WITNESSETH, In the name of the most holy and undivided Trinity, the party of the first part, in consideration of pleasing the Divine Providence to PROHIBIT TYRANNY, does hereby grant and release unto the party of the second part, the heirs or successors and assigns of the party of the second part
forever, fee simple determinable Sovereign Title in,
ALL that certain plot, piece or parcel of land, being The 13 Original Colonies, more particularly described within Article II of The Preliminary Articles of Peace
(attached hereto as Schedule “A”)
Said sovereign title being necessarily conveyed SUBJECT TO THE
DECLARATION OF COVENANTS AND RESTRICTIONS AGAINST TYRANNY
(More particularly described within Schedule “B” attached hereto)
recorded EARLIER, with a firm reliance on the protection of Divine Providence and running with all land described within Schedule “A,” forever.
In Witness Whereof…
++++++++++++++++++++++++++++++++++++++++++++++++++++
Schedule “A” (Land Conveyed–see Article II)
http://www.yale.edu/lawweb/avalon/diplomacy/britian/prel1782.htm
Schedule “B” (Declaration of Covenants and Restrictions Recorded Earlier)
http://www.yale.edu/lawweb/avalon/declare.htm
And that’s all I have to say about that
Excelsior!