"Why The D.C. Voting Rights Act Is Wrong".
Why the D.C. Voting Rights Act Is Wrong
By DAVID B. RIVKIN JR. and LEE A. CASEY
President Barack Obama has the wind in his sails. After a decisive victory, he has launched the greatest expansion of federal government in American history. Republicans, still licking their wounds from November's election, have yet to form an effective political opposition. For now, that leaves the Constitution's structural limits on governmental power as the only potent brake on government further reshaping our society.
Accordingly, Republicans should be the first to insist that these requirements be strictly observed. Unfortunately, a number of congressional Republicans already are abandoning constitutional fidelity by supporting the D.C. Voting Rights Act. The fact that the Act's objective could easily be secured in a constitutionally proper manner makes their support all the worse.
The D.C. Voting Rights Act, which passed by a 61-37 vote in the Senate and is now being considered in the House of Representatives, would grant Washington, D.C., voting representation in that body. The District's current delegate to Congress would be transformed into an actual voting member of the House. In addition, and as an obvious sop to Republican sensibilities, the state of Utah would be awarded an additional House seat. (This would have happened in any case as a projected result of the reapportionment process triggered by the 2010 census.)
The Constitution, however, limits representation in Congress to the people of the states. This requirement applies both to the Senate and the House. With regard to the House, Article I, Section 2 provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."
Washington, D.C., of course, is not a state. Indeed, the Constitution's Framers deliberately established the federal capital as a non-state over which Congress would have "exclusive" legislative authority. They had good reasons for this choice. Certainly, the fledgling national government needed to control its immediate surroundings. Perhaps more importantly, they feared that any state where the capital was located -- New York and Pennsylvania were the leading contenders -- would inevitably exercise undue influence over national deliberations.
As James Madison wrote in Federalist 43: "a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence." Indeed, looking across the Atlantic to Europe, the founding generation could see that the great capitals -- especially London and Paris -- were centers of economic and political power, which could come at the expense of other areas.
The Framers' were determined to avoid this, and so opted to establish the seat of the federal government in an entirely new city outside the territory of any of the states. In the Constitution's Article I, Section 8, Clause 17, they provided for creation of a permanent "Seat of the Government of the United States," located in a "District" to be ceded by the states -- ultimately, by Maryland and Virginia. That territory, 10 miles square, was established as the capital in 1800.
Today, Congress cannot avoid the Framers' intent, or the Constitution's plain language, by simply "considering" the District of Columbia to be a congressional district. Yet this is precisely the D.C. Voting Rights Act approach. If Congress sidesteps clear constitutional requirements, then no provision of the Constitution would be immune from such casual revision.
Congress also cannot grant the District of Columbia a voting House member based upon Congress's constitutional right to "be the Judge of the Elections, Returns and Qualifications of its own Members" -- an article that has been touted by the Act's supporters. This merely permits each chamber to determine whether the qualifications established by the Constitution -- with respect to age, citizenship and residence -- have been met. Congress cannot excuse or dispense any qualification, including and especially the requirement that House members be elected by the people of the states.
If the District of Columbia is to have voting representation in the House, the Constitution must first be amended. There is, in fact, much to recommend such a proposal. From the beginning, the House of Representatives was meant to represent the people; the Senate was reserved to the states. Granting the District's residents a voice in the House is consistent with this design. Indeed, such a measure was proposed by Alexander Hamilton as an amendment during the Constitution's ratification debates.
Hamilton's project never advanced beyond the New York convention where it was proposed. However, there is every reason to believe that such an amendment would win acceptance today and would pass quickly. In 1961, a similarly unobjectionable amendment -- granting the District of Columbia the right to vote for the president, who also represents the people -- was ratified within nine months of its proposal by Congress. This is the correct and lawful way to proceed.
If House Republicans fail to stop the D.C. Voting Rights Act by political means, they are uniquely positioned to challenge its constitutionality by arguing that an illegal addition of a D.C. House member dilutes their votes. Strict observance of the Constitution's requirements must be the order of the day, now more than ever.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.
By DAVID B. RIVKIN JR. and LEE A. CASEY
President Barack Obama has the wind in his sails. After a decisive victory, he has launched the greatest expansion of federal government in American history. Republicans, still licking their wounds from November's election, have yet to form an effective political opposition. For now, that leaves the Constitution's structural limits on governmental power as the only potent brake on government further reshaping our society.
Accordingly, Republicans should be the first to insist that these requirements be strictly observed. Unfortunately, a number of congressional Republicans already are abandoning constitutional fidelity by supporting the D.C. Voting Rights Act. The fact that the Act's objective could easily be secured in a constitutionally proper manner makes their support all the worse.
The D.C. Voting Rights Act, which passed by a 61-37 vote in the Senate and is now being considered in the House of Representatives, would grant Washington, D.C., voting representation in that body. The District's current delegate to Congress would be transformed into an actual voting member of the House. In addition, and as an obvious sop to Republican sensibilities, the state of Utah would be awarded an additional House seat. (This would have happened in any case as a projected result of the reapportionment process triggered by the 2010 census.)
The Constitution, however, limits representation in Congress to the people of the states. This requirement applies both to the Senate and the House. With regard to the House, Article I, Section 2 provides that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States."
Washington, D.C., of course, is not a state. Indeed, the Constitution's Framers deliberately established the federal capital as a non-state over which Congress would have "exclusive" legislative authority. They had good reasons for this choice. Certainly, the fledgling national government needed to control its immediate surroundings. Perhaps more importantly, they feared that any state where the capital was located -- New York and Pennsylvania were the leading contenders -- would inevitably exercise undue influence over national deliberations.
As James Madison wrote in Federalist 43: "a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence." Indeed, looking across the Atlantic to Europe, the founding generation could see that the great capitals -- especially London and Paris -- were centers of economic and political power, which could come at the expense of other areas.
The Framers' were determined to avoid this, and so opted to establish the seat of the federal government in an entirely new city outside the territory of any of the states. In the Constitution's Article I, Section 8, Clause 17, they provided for creation of a permanent "Seat of the Government of the United States," located in a "District" to be ceded by the states -- ultimately, by Maryland and Virginia. That territory, 10 miles square, was established as the capital in 1800.
Today, Congress cannot avoid the Framers' intent, or the Constitution's plain language, by simply "considering" the District of Columbia to be a congressional district. Yet this is precisely the D.C. Voting Rights Act approach. If Congress sidesteps clear constitutional requirements, then no provision of the Constitution would be immune from such casual revision.
Congress also cannot grant the District of Columbia a voting House member based upon Congress's constitutional right to "be the Judge of the Elections, Returns and Qualifications of its own Members" -- an article that has been touted by the Act's supporters. This merely permits each chamber to determine whether the qualifications established by the Constitution -- with respect to age, citizenship and residence -- have been met. Congress cannot excuse or dispense any qualification, including and especially the requirement that House members be elected by the people of the states.
If the District of Columbia is to have voting representation in the House, the Constitution must first be amended. There is, in fact, much to recommend such a proposal. From the beginning, the House of Representatives was meant to represent the people; the Senate was reserved to the states. Granting the District's residents a voice in the House is consistent with this design. Indeed, such a measure was proposed by Alexander Hamilton as an amendment during the Constitution's ratification debates.
Hamilton's project never advanced beyond the New York convention where it was proposed. However, there is every reason to believe that such an amendment would win acceptance today and would pass quickly. In 1961, a similarly unobjectionable amendment -- granting the District of Columbia the right to vote for the president, who also represents the people -- was ratified within nine months of its proposal by Congress. This is the correct and lawful way to proceed.
If House Republicans fail to stop the D.C. Voting Rights Act by political means, they are uniquely positioned to challenge its constitutionality by arguing that an illegal addition of a D.C. House member dilutes their votes. Strict observance of the Constitution's requirements must be the order of the day, now more than ever.
Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Ronald Reagan and George H.W. Bush.
Labels: The Constitution
posted by KYJurisDoctor at 1:16 PM
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