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Bench Memos

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The Post Forgets the Constitution



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The editors of the Washington Post say today that “there is no reason that a bill giving the District a true representative in Congress shouldn’t pass–and soon.”  They’re referring to an effort to create a full voting seat in the House of Representatives for the District of Columbia.  But clearly they’ve mislaid their copy of the Constitution, because I can think of a few reasons not to pass this bill.  (I’ve written about this numerous times, beginning here and here, and then most prominently here, here, here, here, and here as well.)

A quick reiteration.  States, and the people thereof, are represented in the U.S. Congress.  D.C. is not a state, and the proposed legislation does not contemplate making it one.  This is obvious when we notice that the proposal does not include giving D.C. two senators, just a single House seat.  Hence D.C. would be the “little state that isn’t”–some improvement over the much-decried “second-class citizenship” of D.C. residents.  The power allegedly sufficient to justify this legislation–the authority to “exercise exclusive Legislation in all Cases whatsoever” over the nation’s capital district–cannot be read to authorize the Congress to change the basis of the American people’s representation in either house.  Congress could as readily give Guam a single senator and continue governing it as a territory, with no statehood, no state constitution, and no state government (all of which D.C. also lacks) as it could pass this bill.  It gives total control over the suffrage in and conduct of a House seat’s election to the Congress itself–unlike every other seat in either house of Congress, where elections are administered by the states.  And it contradicts the 23rd Amendment, which supplies a number of electors in presidential elections to D.C. equivalent to the number of members of Congress it would have, with its population, if it were a state.  That amendment was written assuming, and makes sense only if, there is no congressional representation of the District.

Other than these little problems, I suppose the bill is a grand idea.  And our “constitutional law professor” president-elect is blithely prepared to sign it.  I suppose he lost his copy of the Constitution as well.



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