Bench Memos

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What’s the Constitution Between Friends?


Like a broken record, the Washington Post is back yet again today to press the unconstitutional case for full voting representation for the District of Columbia in the U.S. House of Representatives. And get this: the Post says that “opponents of D.C. voting rights have latched onto the only argument they can make with a straight face — that the bill is unconstitutional.” Um, yeah. Straighter faces are not necessary. Are they? Next we are told this: “Former judges and constitutional scholars such as Kenneth Starr, Patricia Wald and Viet Dinh, not to mention the American Bar Association, believe the bill is constitutional.” That “not to mention the ABA” has me in stitches, since the track record of the ABA in making sound pronouncements on the meaning of the Constitution is, frankly, abysmal, more or less since the organization’s founding. But it gets worse. The editorial ends this way: “We concede that serious people hold the contrary view. [Thanks! See this critique of the Starr-Wald argument.] No court has ever weighed in on the D.C. Voting Rights Act [how could any court have done this, since the act hasn't passed yet?], so the constitutional question is open. That, though, is an issue for the courts to decide, in the event of a legal challenge. It should not be an excuse for Congress to continue to deny a basic right to more than half a million people.” Why is it “an issue for the courts to decide”? And why, in heaven’s name, should the Congress use the excuse of judicial supremacy as a reason to pass a bill that is unconstitutional on its face, under its skin, and at its heart? If members of Congress believe the bill is unconstitutional, or even doubtful, they should vote against it and look for another solution to alleged plight of D.C. residents (like making them Marylanders again). Not that Congress and the executive haven’t kicked tough constitutional issues to the courts before, on the wrongheaded pretext that they are “for the courts to decide” when as often as not they are no such thing. Keith Whittington of Princeton has in fact just published an entire book apparently devoted to this irresponsible practice. I look forward to reading it.

Tags: Franck


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