D.C.’s Speed Bump: The Constitution

210px-flag_of_washington_dcsvgHere 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

63 thoughts on “D.C.’s Speed Bump: The Constitution”

  1. Bobesq:

    Make sure it is only a chocolate facsimile thereof. It will have the same peaceful effect without the trauma.

  2. Squire Bob, sorry you wasted all that time on an argument that is wrong.

  3. lol

    Now now Bob! It’s not all that serious. If it’s any consolation, that was quite entertaining.

  4. Mespo & Patty,

    Thanks. I just wasted a half hour making a lengthy argument that essentially repeats the points you made.

    Excuse me whilst I wrap my lips around a revolver.

  5. Mespo:

    “It is indisputable that the doctrine of judicial review does not appear within the four corners of the US Constitution nor its amendments. It is likewise true that Marshall created the doctrine for both practical and philosophical reasons. Marshall drafted the opinion before the case even got to his Court though he knew it would eventually get there.”

    Mespo, you’re preaching to the choir; albeit a tad off-key. Please re-read what I wrote to you earlier about the implied power arising necessarily in connection with upholding a ‘solemn duty’ to defend the constitution and the republic in lieu of turning said oath into ‘solemn mockery.’

    Stated another way, my point is that the power of judicial review is far less rooted in formal law and far more rooted in the initial epistemic inquiry “are we remaining loyal to the document and how do we know?” So long as the Justices remain as intellectually honest as Marshall, the origin of the power is far less relevant than crafting an equitable remedy expressing said loyalty to the document.

    The other view, i.e. that the power is firmly settled, absolute and unquestionable is the door way to completely forgetting how the constitution is structured and the order of operation by which it functions.

    Allow me to illustrate as I reply to Vince here:

    Vince,

    You say that the Constitution ‘establishes’ rights; however the founders, such as Hamilton, would remind you that you’re wrong.

    POWER CONFERS RIGHTS; NOT VICE VERSA.

    As Hamilton reminded us in Fed 84:

    “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.”

    Furthermore, the Constitution is ALL ABOUT STRUCTURE. While I may despise Antonin Scalia, my hatred of the man does not negate the truth of his words:

    Scalia: “What the people care about, what affects them is the Bill of Rights …. That is a profoundly mistaken view …. For the fact is, that it is the structure of the government, its constitution, in the real sense of the word, that ultimately destroys freedom. The Bill of Rights is not more than ink on paper unless … it is addressed to a government which is so constituted that no part of it can obtain excessive power….”

    Whenever we forget the foregoing, we run into the trap of reaching the tragic conclusions that Hamilton warned about simply by adopting an incorrect order of operations.

    Again, the order of operations is “RIGHTS CONFER POWER; NOT VICE VERSA.”

    Here’s a mathematical example of disregarding order of operations:

    Three friends have a nice meal together, and the bill is $25

    The three friends pay $10 each, which the waiter gives to the Cashier

    The Cashier hands back $5 to the Waiter

    But the Waiter can’t split $5 three ways, so he gives the friends one dollar each and keeps 2 dollars as a tip.

    They all paid $10 and got $1 back. $10-$1 = $9

    There were three of them 3 X $9 = $27

    If they paid $27 and the waiter kept $2: $27+$2=$29

    Where did the other dollar go? $30 – $1 = $29

    http://www.mathsisfun.com/puzzles/where-did-the-dollar-go–solution.html

    Finally, if you truly have your mind set on:

    “Squire Bob, it is not an implied power because it is set out in the words of the Constitution.”

    then far be it from me to convince you otherwise. Perhaps Professor Turley can convince you.

    Otherwise, let me conclude with a quote from the ratifying convention from New York expressing a dire concern that someone like Marshall would come along and pull a rabbit out of his hat like he did in Marbury:

    “That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.”

    I’ve spent far too much time on this topic.

    SIYOM,

    Bob

  6. VT, even though I know what you mean, this is where words get minced like garlic and basil in a marinara.

    Rights confer power and are not granted by, but are rather protected under, the Constitution.

    ‘It’s in there’, as they say…

  7. Vince:

    ““The constitution grants no rights whatsoever.”

    Wrong. It does establish rights.”

    ***********

    This dispute is more than semantics. In the collective mind of the framers, the Constitution does not “establish” rights, it recognizes certain inalienable rights.* It is also indisputable that the words “judicial review” are not found in the Constitution, and further that the notion was inserted by Marshall for the reasons I cited above. You may also feel that the concept is implied in the terms of the document, but that is likewise the basis for much interpretation. Judicial review predates the Constitution in the common law back to Lord Coke in Dr. Bonham’s Case, 8 Co. Rep. 107a (1610), and could have easily been explicitly incorporated into its terms.

    *From the Declaration of Independence:
    “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…”

  8. “The constitution grants no rights whatsoever.”

    Wrong. It does establish rights.

    It also establishes a government with a “judicial Power.” That is the power to judge “Cases.” It vests the power in a “supreme Court.” It gives that court “Jurisdiction,” that is, the power to decide, cases. The judicial power extends to cases “arising under this Constitution.” That Constitution is the “supreme Law of the Land.” Which of these words do you not comprehend? The Court resolves cases, and if the law before it is inconsistent with the Constitution, then the Constitution prevails over the law.

    Supreme Court enforcement of the Constitution is within its “four corners”, since the words of the Constitution itself expressly established a system in which cases would arise under it, and be resolved by the Supreme Court, with the Constitution supreme.

    Squire Bob, it is not an implied power because it is set out in the words of the Constitution.

    Also, JT and I think you are wrong about the DC voting rights in Congress, because it changes the composition of the Congress written in the words of Article I, and is thus inconsistent with the representative republican form of government established by the Constitution. If it is ever enacted into law (now unlikely), it will be very probably be held unconstitutional by the courts.

  9. Bob, Esq & Vince:

    It is indisputable that the doctrine of judicial review does not appear within the four corners of the US Constitution nor its amendments. It is likewise true that Marshall created the doctrine for both practical and philosophical reasons. Marshall drafted the opinion before the case even got to his Court though he knew it would eventually get there.

    Marshall was a true nationalist in the sense that he believed the Constitution would best be used as a national Charter to unify the Nation. Having lived through the days of the Articles of Confederation, he was keenly aware of the shortcomings of that anti-federalist document. It’s worth noting that on January 21, 1786, the Virginia legislature invited the other states to send delegates to Annapolis, Maryland to discuss amending the Articles to reduce inter-state conflicts. The Annapolis Convention was the precursor to the Constitutional Convention in Philadelphia one year later. Marshall was in the Virginia legislature and serving on the Council of State at the time, and was instrumental in supporting the sparsely attended meeting of state representatives. In 1787, Marshall attended the Constitutional Convention in Philadelphia with the Virginia delegation, and together with James Madison and Edmund Randolph, Marshall led the fight for ratification of the document containing provisions calling for a strong national government as opposed to Patrick Henry and Thomas Jefferson (his cousin and leader of the Democratic-Republican Party/D-R), who wanted a document with less central control and more power for the constituent states. Marshall was especially active in defense of Article III, which provides for the Federal judiciary.

    Against this backdrop, it was easy to see that once Marshall ascended to the High Court he would do nothing to diminish the powers of the central government, nor the federal judiciary. This of course meant reserving as much power as possible for the federal courts which were considered, by some, to be subservient to the state courts. Marshall knew that to be taken seriously he would have to stake out a position empowering the federal courts, but not directly attacking the power of Congress, which at the time was considered the most powerful among the branches of government, with the judiciary a decidedly last place finisher in terms of importance.

    Jefferson’s election in 1800 and the sweeping in of his D-R Party into the Congress boded ill for the federal judiciary given Jefferson’s anti-federalist political philosophy. Among the first acts of the new Congress was the repeal of the Judiciary Act of 1801 that was passed by the lame duck Congress just before Jefferson took the oath of Office in March, 1801. The 1801 Act greatly expanded the reach and size of the federal courts. The D-R’s, anti-federalists all, passed a new Judiciary Act (1802) which directly challenged the role of the Supreme Court and forced it to operate under the restrictive dictates of the old Judiciary Act of 1789. It also shortened the Court’s term and even canceled its second term of June of 1802. In doing so, the new Congress could delay any challenge to the new Judiciary Act until well-after the law was in effect.

    Marshall was not blind to this challenge to the federal judiciary and to the notion of a strong central government, having been an accomplished legislator in his own right and a champion of federalism during the Convention. Seizing on a rather obscure case of a Justice of the Peace whose commission was not delivered on time for him to assume his office, Marshall cleverly held that Marbury, the unlucky JOP nominee, had a right to his commission but that the Court was powerless to enforce the right through the writ of mandamus as the Act enabling that enforcement was at odds with the Constitution. The brilliance is in giving the D-R’s what they desperately wanted, which was to deny the seating of these so-called “Midnight Judges,” but in so doing, establishing conclusively that the Supreme Court could effectively block any Act passed by the D-R Congress on constitutional grounds. In giving the D-R Congress a minor victory, Marshall enshrined the notion of the Court’s role as final arbiter in deciding the constitutionality of laws enacted by the Congress. He also partially gutted the old Judiciary Act of 1789. The elegance of Marshall’s decision was that the D-R’s could hardly be heard to complain since, in essence, they had “won” the case–but, as we have seen, had actually lost the philosophical war.

  10. Vince,

    I honestly don’t know what to say.

    You said: ““The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.”

    That’s flat out wrong.

    You even quoted text saying so: “the Supreme Court has … THE POWER ESTABLISHED IN Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions”

    The mere fact that we have accepted for two centuries Marshall’s weaving of an implied power of judicial review does not diminish the fact that Article III can only be amended pursuant to Article V.

    The constitution grants no rights whatsoever but rather gives form to our republic via SPECIFICALLY ENUMERATED POWERS. Failure to remain cognizant of these fundamental truths leads exactly to what Ben Franklin warned about.

    See what I wrote to Mespo above.

  11. Mespo,

    I’m fully aware of the reasoning of Marshall in Marbury; right down to the ordering of his reasoning– i.e. saving the rabbit out of the hat trick for last.

    However, let’s be clear; I’m not arguing against judicial review per se. I’m simply restating the obvious fact that it’s not a specifically enumerated power. And because Marshall had no authority to create or exercise a power that was not specifically granted to the Court, it must be deemed in the same light in which Marshall saw it; i.e. an implicit privilege to fulfill a ‘solemn’ duty, imposed by the oath of loyalty, to preserve our republican form of government via the separation of powers doctrine.

    Thus Marshall ends with: “Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government? if it is closed upon him, and cannot be inspected by him?

    If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime.”

    Accordingly, when SCOTUS acts as an oligarchy of nine by issuing a ruling that is repugnant to the constitution as a matter of definition, all those bound by the oath have a solemn duty to recall that Judicial Review is not an absolute constitutional power by disregarding said ruling and punishing the Justices for ‘bad behavior.’

    Finally, one of the main reasons for the decline of this country’s legal system has EVERYTHING to do with filling the seats of Capitol Hill with congressmen who wouldn’t know the basic principles constitutional law, much less maintaining a republican form of government as guaranteed by Article IV, if they were pissing on them.

    SIYOM,

    Bob

  12. Bob, that is interesting speculation about the (very) minority view that the Supreme Court cannot invalidate a congressional enactment, but it is just that — speculation. IT IS NOT THE LAW.

    Judicial review is set forth in the express words of Article III and the Supremacy Clause. When a case arises under the Constitution, Article III gives the Supreme Court the judicial power and jurisdiction to resolve that case. The words could not be clearer. If an enactment by Congress violates the Constitution, then the Supreme Court may rule that it is invalid as a necessary step in resolving a case or controversy before it.

    See United States v. Nixon 418 U.S. 683. According to the Wiki summary, QUOTE The unanimous decision held that the Supreme Court has not only the power established in Marbury v. Madison to rule a law invalid for conflicting with constitutional provisions but also power to decide how the Constitution limits the President’s powers; that the Constitution provides for laws enforceable on a president; and that executive privilege does not apply to “demonstrably relevant” evidence in criminal cases. UNQUOTE

    From the decision: QUOTE Notwithstanding the deference each branch must accord the others, the “judicial Power of the United States” vested in the federal courts by Art. III, 1, of the Constitution can no more be shared with the Executive Branch than the Chief Executive, for example, can share with the Judiciary the veto power, or the Congress share with the Judiciary the power to override a Presidential veto. Any other conclusion would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of a tripartite government. The Federalist, No. 47, p. 313 (S. Mittell ed. [418 U.S. 683, 705] 1938). We therefore reaffirm that it is the province and duty of this Court “to say what the law is” with respect to the claim of privilege presented in this case. Marbury v. Madison, supra, at 177. UNQUOTE

    To repeat, as held in Marbury, and unanimously reaffirmed in Nixon, it is the duty of the Supreme Court to say what the law is. That is the law of the land. To be a lawyer, that is the answer you have to give on the bar exam.

    If it is unsatisfactory, put in an amendment to change it.

    Everyone, for a list of laws enacted by Congress and invalidated in whole or in part by the Court, go to:

    http://www.gpoaccess.gov/constitution/pdf2002/046.pdf

    It is a very long list of over 40 pages of laws that are no longer enforceable because of judicial review. It reflects the settled legal doctrine of judicial review of federal legislation by the Supreme Court. It would be very suprising if all those cases were based on a misunderstanding.

  13. Bob,Esq:

    A little of the genius of CJ John Marshall (in whose courthouse I go on a daily basis) explaining judicial review, from his magna opus, Marbury v. Madison:

    “This original and supreme will organizes the government, and assigns, to different departments, their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

    The government of the United States is of the latter description. The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction, between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

    Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

    If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature illimitable.

    Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

    If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

    It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

    So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

  14. Bron98:

    “More than likely, the change is ascribable to your interactions with those other most intelligent persons within this blawg. Whatever the reason, you have become a welcome contributor and many of your questions garner good debate and information.”

    ************

    Hear, hear! “In the same way, I tell you that there will be more joy in heaven over one sinner who repents than over ninety-nine righteous people who don’t need to repent.” Luke 15:7 (ISV)

  15. Vince:

    “The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.”

    Huh?

    “The Constitution does not expressly provide for judicial review.”

    http://www.law.umkc.edu/faculty/projects/FTRIALS/conlaw/judicialrev.htm

    See also “A Critical Guide to Marbury v. Madison,” William W. Van Alstyne, Duke Law Journal, 18 . pp. 1-47. (1969)

    http://eprints.law.duke.edu/544/

  16. FFLEO:

    I was just a jackass with a hair up my ass. I am a pretty firm believer in individual liberty and responsibility if and when I can determine that that is what it is (that was a precise construction)

    Actually I think you will find that most conservatives think like I do on civil liberties. I think people confuse us with the moral majority, which actually scares me as I have no desire to live in a theocracy.

    But anyway thank you and I really enjoy this site, you do learn a great deal here. It is like sitting at the right hand of Aristotle and the left hand of Plato with Cicero and Epicurus nearby and Thomas Jefferson whispering in your ear.

  17. The text of Article III does give the Supreme Court judicial power and jurisdiction over cases arising under the Constitution, that is, judicial review.

  18. Bron98,

    As an atheist, I do not subscribe to the supernatural; however, your transformation from what you were less than a month ago is quite remarkable. Perhaps someone else was using your screen name…

    More than likely, the change is ascribable to your interactions with those other most intelligent persons within this blawg. Whatever the reason, you have become a welcome contributor and many of your questions garner good debate and information.

    Perhaps liberal, civil libertarian thinking—so often espoused here—is not so destructive and counterintuitive to conservative ideologies, after all.

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