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Bench Memos

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Pass the Bill and Pass the Buck



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The editors of the Washington Post are at it again today, impatient to pass a bill to give the District of Columbia a regular seat in the House of Representatives–without senators and without statehood.  Continuing its practice of misleadingly calling this a “voting rights” bill, when D.C. residents currently have all the voting rights to which the Constitution entitles them, the Post thinks all debate on this matter should come to an end.  Referring to a hearing yesterday before a House Judiciary subcommittee, the editors write:

Much of yesterday’s discussion came down to the now familiar back-and-forth over whether the measure is constitutional. There are valid legal arguments for and against, with noted scholars on both sides, but the question is best left to the courts to decide. The use of such concerns to block the bill is a ruse by those who lack the political will to enfranchise D.C. residents.

It’s nice for the Post to concede there are “valid” constitutional arguments on both sides.  But I think they mean “plausible,” since in a world where the Constitution means what it says, only one side can have the “valid” argument–i.e., the correct one.  Having examined this matter as closely as anyone I know, I can say that in 30 years of studying the Constitution I’ve never come across a real (non-hypothetical) constitutional question that is easier than this one.  The arguments on the other side, with all due respect to those who make them, are not only invalid but hardly even rise to the level of “plausible,” requiring the tortuous misinterpretation of one clause in the text of the Constitution and the suppression of several others.  For the short course, go to this recent post of mine, and follow the links for more elucidation.

But the Post, in its anxiety to remedy what it calls an “intolerable injustice,” commits an injustice of its own in calling opposition on constitutional grounds a “ruse” by people who are somehow hostile or indifferent to “enfranchis[ing] D.C. residents.”  The constitutional grounds for a “no” vote on this bill are so compelling that the Post has long since ceased attempting to respond to them, and resorts only to name-calling and temper tantrums.  Those grounds are so compelling that members of Congress who vote “no,” as they should, can sleep the sleep of the just, knowing they have kept their oath to the Constitution.  They don’t need to be slandered by the capital’s dominant newspaper as heartless bigots where D.C. is concerned. 

The Post’s editors, by contrast, have enough doubt about their position to recommend that the constitutional issue be “left to the courts to decide”–as if it were a) difficult, b) easy to hand off to the courts in a fashion that shapes it into a question courts can address, and c) appropriate for judicial rather than legislative resolution even if that were done.  It is none of the above.

The Post writes also that “[n]o one at yesterday’s hearing–even those who vehemently oppose the bill–could argue it’s okay for the hundreds of thousands of Americans living in the nation’s capital to be taxed, sent to war and governed without any real say in what their government does.”  I confess I don’t get that exercised about the alleged injustice.  But if that really concerned the editors, don’t you think they’d want D.C. residents to have full representation in Congress–with senators too?  Maybe those Americans could, you know, live in a state, which would automatically take care of the problem?

D.C. doesn’t need or deserve statehood on its own.  The best solution for D.C. residents to get “voting rights” in Congress is for the residential parts of the District to be “retroceded” to Maryland.  This is how residents of Alexandria and Arlington, Virginia got to vote for congressmen again.

Majority leader Steny Hoyer of Maryland was a witness at yesterday’s hearing and was in high dudgeon about the poor “disenfranchised” residents of D.C.  But it’s hard to avoid the conclusion that he just doesn’t want them back as fellow citizens of Maryland.



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