Crazy Pills

The Marginal Value of a Vote by A Milder Despot
February 23, 2009, 3:10 pm
Filed under: A Milder Despot

“Voting rights” for the District of Columbia are near.

Conservatives are in a tizzy, lefties are excited. I think that those on the right have expressed a legitimate concern: is it Constitutional?

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”

Now maybe it’s the cranky strict constructionist in me, but to me, this says “this is how our government works, this is how the people in the House of Representatives get elected,” and the DC voting-rep-in-the-house bill doesn’t seem to pass Constitutional muster.

I haven’t seen any defenses of how it could be Constitutional. Admittedly, I haven’t looked too strenuously for a defense, but could someone please point me to one if it’s been explored?

Additionally, it’s been suggested that it will be difficult to find a plaintiff to bring standing to the court to contest the Act.


9 Comments so far
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The argument in favor of it, from what I’ve been told, is that in any number of other ways, DC is treated as a State, especially when it comes to courts. A citizen of DC can sue in the Supreme Court which has jurisdiction over cases between “citizens of different States”.

Comment by fluffly

Also, why is this a conservatives/lefties issue? Are conservatives so convinced that liberals are dying to subvert the constitution? Its a voting rights question. If the right to vote in Iraq is worth going to war for, shouldn’t the right to vote in DC be worth passing a bill? Is our democracy put at risk by giving the half a million people in DC a vote in Congress?

Comment by fluffly

The “D.C. is a pseudo-state under the law” is an interesting argument and I’d like to read a more fully-formed constitutional case for that.

You’re right in that it’s not really a right/left of the political spectrum issue. But it’s (I believe) a strict constructionist/loose constructionist issue, and that usually breaks down among Right/Left lines.

Your framing of the question, I think, really does epitomize that, basically brushing aside Constitutional questions in favor of again raising the “voting rights” issue. I of course think that every U.S. citizen should be represented in Congress. But I’m not sure that the DC voting act passes Constitutional muster. As I’ve said, I’ve read a few critiques of the idea under the notion that only States can have representatives in Congress. D.C. isn’t a State and the Act doesn’t grant statehood to D.C. I think it may be time to make D.C. a State; however, I am unconvinced that it’s legal to just give D.C. one voting Representative in Congress.

And no, our democracy is not threatened by giving a half-million people in D.C. a vote in Congress. The power of the Constitution may be watered down a little bit. And just because Democracy isn’t threatened doesn’t mean it’s okay to flaunt the Constitution.

Comment by A Milder Despot

But the constitution isn’t watered down by giving us judicial representation or making us pay federal taxes. Why should a vote be different?

Senator Kyl had some pretty douchy comments on this today, saying “The District does not need a representative, Kyl contended, whose ‘goal would be to expand the District’s share of federal spending.’ He also argued that the District ‘already has representation in Congress — 100 senators and 435 House members.’

So DC doesn’t deserve a representative solely because he doesn’t like her politics? Seriously? And we don’t have representation. I promise you that if you called Kyl’s office right now, his staff would transfer you somewhere else.

Comment by fluffly

From that same Washington Post article:
“Lieberman and Sen. Orrin Hatch (R-Utah) argued that the bill passed legal muster because the Constitution allows Congress broad powers over the District. In addition, they argued, courts had considered the District like a state for matters like taxation and inter-state commerce. “

Comment by fluffly

Kyl is definitely using some wrong-headed reasoning there. I do suspect that the reason a lot of the Republicans in elected positions on the Hill are against giving D.C. a voting member in Congress is for partisan strategy rather than a principled stand.

However, a man with a bad justification for voting against something doesn’t invalidate the good justifications.

This is a good debate, I’m re-combing my copy of the Constitution.

Comment by A Milder Despot

I know we hate it, but here’s a great piece in Slate.

Congress should pass the current law, even if it is likely to be struck down by the Supreme Court. Rejection by the court would put the issue on the front burner. Obama could then push for quick passage of a constitutional amendment in Congress and the states.

Indeed, Slate puts forward arguments both for and against the DCVRA. Since I’ve already outlined the “against,” here’s their “for”:

Perhaps surprisingly, some conservative heavy hitters (who tend to favor textualist and originalist interpretations of the Constitution) nonetheless have come out in favor of the constitutionality of the measure. Ken Starr has argued that Article I elsewhere, in what’s called the District Clause, authorizes House representation for the district by providing that “[t]he Congress shall have power … to exercise exclusive legislation in all cases whatsoever” over the District of Columbia. Professor Viet Dinh, who worked as an assistant attorney general in the Bush administration, has made similar arguments that Congress’ power under this Clause is plenary, and he backs it up with his own analysis of the Framers’ intent.

Consider me swayed, or at least pushed from “it looks like it’s pretty firmly unconstitutional” to agnostic on it. I’ll have to read more.

Comment by A Milder Despot

I thought the ever-eloquent George Will thoughtfully articulated part of the argument against giving DC a representative in his February 5th op-ed. He takes issue with the supporters’ argument in that it amounts to one Constitutional clause (Congress’s exclusive domain over DC) trumping another Constitutional clause (Congress shall be composed of representatives from the states). He then slides down a bit of slippery slope with suggesting this argument could then be used by Congress to abridge DC’s freedoms of speech, assembly, etc.

But more importantly, I take issue with the argument that since DC is treated like a state, and has been for some time, it should follow that a simple statute should override the Constitutional definition of Congress. One could make this argument based on a precedent – that since DC has trended toward being considered a state, then by convention, further incremental characteristics of states can be given.

However, the true incremental method (and Burkean for that matter) by which DC should be awarded Congressional representation is through that darned old amendment process, which people love to ignore. Indeed, there is even precedent for the District gaining state-like characteristics through an amendment; it’s called the 23rd amendment, which rewarded it electoral votes.

Does DC deserve representation? Certainly. Does it deserve statehood? Probably. What matters more than both of these issues? Constitutional consistency and probity.

Nonetheless, much opposition to even incremental representation is unfortunately highly politicized; namely conservative fear (including George Will in the later part of his op-ed) that a DC Rep in the House will eventually to the bluest state in the Union with two bleeding heart communists.

I applaud the bipartisan nature of the current statute, and I think it reflects a harbinger for evolving views on the subject. But crimony, do it the right and pragmatic way; a constitutional amendment that says “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and one member from the District of Columbia.” Then deal with the question of statehood afterward.

Comment by S. Goodspeed

I like the “pass the bill then if it’s overturned change the constitution” approach. I fear Republicans hiding behind the constitutional difficulties because of politics.

Comment by Movers&Shakers

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