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Bench Memos

NRO’s home for judicial news and analysis.

On Capitol Hill, Bad Ideas Never Die



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Almost a year has now passed since I first offered a refutation here at NRO of the unconstitutional idea of giving the District of Columbia a full voting seat in the House of Representatives, and I have blogged here about it frequently since then.  The arguments of the idea’s proponents have, if anything, gotten worse over time.  Today’s Washington Post carries its latest incarnation, a weak attempt to connect this bill to “civil rights” that overtly plays the race card.  The piece is signed by three members of Congress and a wannabe: Sens. Joe Lieberman and Orrin Hatch, Rep. Tom Davis of Virginia, and “nonvoting delegate” Eleanor Holmes Norton of D.C.  Norton’s self-interest is self-evident.  Hatch seems to have taken no interest in this “voting rights” crusade until an additional House seat for Utah (which will come the state’s way in the next census anyway) was thrown into the bargain.  But it’s the argument that matters, and it’s a bad one.

Our four musketeers cite former assistant attorney general Viet Dinh for the proposition that the Supreme Court has, in the past, sanctioned congressional acts that recognized D.C. as akin to a state for some purposes.  Yes it has, sometimes rightly and sometimes wrongly (and yesterday’s errors cannot baptize today’s).  But all previous instances of such assimilation of D.C. to a state have entailed the incidental exercise of powers the Congress legitimately exercised over the whole nation.  The misleadingly named “D.C. Voting Rights Act” is different.  By this legislation, the Congress would assume the power to alter the constitutive basis of its own power under the Constitution.  Congress’s power derives from its constituents, the people of the various states.  If Congress can seat a member from D.C. without making it a state, it can seat a member from Puerto Rico, or Guam, or the Virgin Islands, without making it a state.  It could establish a seat filled by the votes of expatriates who no longer maintain any status as a “resident” of any state.  In fact, there would henceforth be no barrier to the granting of seats in Congress to voters in Saskatchewan–Canadian ones, not U.S. expats–since there is no requirement in the Constitution that congressional voters be U.S. citizens, only that they be “the People of the several States,” and Congress will already have ignored that essential stricture.

Congress will also have established the precedent that some constituencies in Congress can be represented in one house of the body but not the other.  There is no provision in the present bill to give D.C. senators as well as a representative–which is in itself proof of its unconstitutionality, since the Constitution cannot be said to contemplate a political unit represented in just one house.  And there is no reason not to do it the other way around.  May we expect to see a bill giving Puerto Rico two senators and no representative?  It would be equally permissible.

Make D.C. a state, or amend the Constitution (see 23rd Amendment for the model).  There is no third way.  When the argumentum ad misericordiam must be made for the obviously unconstitutional, we can conclude that the votes aren’t there for either of the two legitimate options before the Congress.



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