The Liberty Papers

I’ve been writing alot this week over at Below The Beltway about the bill currently making it’s way through Congress that would give the District of Columbia voting representation in the House of Representatives. The bill is being pushed by Democrats and some Republicans, and it’s also unconstitutional.

Today, the Wall Street Journal has an editorial about what it calls The D.C. Con:

If you’ve visited the District of Columbia, you may have seen the license plates declaring “taxation without representation.” This isn’t a gripe about taxes, which they love in D.C. It’s a complaint about the District’s lack of seats in Congress. The rest of the country might have more sympathy if D.C.’s politicians were seeking representation according to the U.S. Constitution.

That isn’t true of legislation poised to pass the House that would provide the 580,000 District residents with official representation in Congress. (They currently have a “Delegate” who has full committee rights and can vote on floor amendments as long as it doesn’t change the outcome.) Supporters claim the vote is about “democracy,” with Republican co-sponsor Tom Davis from nearby Virginia going so far as to suggest that residents of Baghdad have more rights than D.C. residents.

I am embarrassed to admit that Tom Davis is my Congressman. Embarrassed because he’s hatched this cynical deal, and embarrassed because the bill is so obviously unconstitutional that allowing it to pass without challenge would have the effect of saying that the words in the Constitution don’t really mean anything.

The argument against Constitutionality is fairly simple. Article One, Section Two of the Constitution says the following:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

Article One, Section Three says the same thing about the Senate:

The Senate of the United States shall be composed of two Senators from each State, (chosen by the Legislature thereof,) (The preceding words in parentheses superseded by Amendment XVII, section 1.) for six Years; and each Senator shall have one Vote.

Plainly, only states can have voting representation in the House and the Senate. The District of Columbia is not a state, it is a district controlled by the Federal Government made up of territory originally ceded by Maryland and Virginia (Virginia’s portion was returned in the 19th Century and is now known as Arlington County, Virginia). While residents of the District now do have a significant degree of control over their affairs, the vestiges of the original plan remain in the fact that nearly all major legislation approved by the elected leaders of the city could be overturned by Congress if it desired.

Since the District of Columbia is not a state, it is not entitled to voting representation in Congress. In this way, it is in a similar position to the Territorial Governments that existed in the West in the 19th Century before statehood was granted. If you want to grant voting representation in Congress to the residents of the District, then the only option is to amend the Constitution, which was done in the 1960s to give residents of the District the right to vote for President and Vice-President.

Given the clear text of the Constitution, you might think this was a slam dunk and that this bill would be dead on the vine, but you’d be wrong.

Supporters of the bill have a section of the Constitution that they’re relying upon in support of their argument that the bill is Constitutional. It’s called the District Clause, which is located in Aricle I, Section 8:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;

Proponents of the voting bill contend that this provision of Article I gives the Congress the power to grant the District something that the Constitution says only states can have, voting representation in the House of Representatives.

As the Wall Street Journal points out, this argument simply doesn’t make sense:

The same D.C. clause does not say, however, that Congress can ignore the rest of the Constitution, including such details as election standards. Under this sweeping reading, Congress would also be allowed to suspend free speech in the District, or allow unfettered search and seizure.

Plainly, the District Clause gives Congress the authority to make laws for the District of Columbia, which it did for nearly 200 years until the city was granted home rule. As I said above, though, even today most major laws passed by the D.C. Council require approval by Congress. The only way that can change is by amending the Constitution.

What the so-called “District Clause” does not do, however, is give Congress the authority to ignore the Constitution itself and grant the District of Columbia rights and privileges extended only to the states.

There are several ways that would be valid under the Constitution to give the residents of the District voting representation in Congress. One would be to return most of the District, with the exception of the area in the center of the city where most Federal offices are located, to Maryland and make the citizens of D.C. citizens of Maryland. Maryland is unlikely to agree to that, of course, but it is certainly an option. The other option is to amend the Constitution to give the District of Columbia voting representation in the House and Senate.

What Congress is trying to do, though, is blatantly unconstitutional.

Related Posts at Below The Beltway:

A Vote For D.C. That’s Unconstitutional
Congress Examines Legality Of D.C. Vote Bill
White House Opposes D.C. Vote Bill
The D.C. Voting Rights Crybabies
Will Bush Veto The D.C. Vote Bill ?
Memo From The Washington Post: Ignore The Constitution, Just Vote Already
D.C. Vote Bill Stalls In The House