Jewish World Review Dec. 6, 2004 / 23 Kislev, 5765
Right Goal, Wrong Means
Many D.C. citizens have been elated to hear about a plan to make the city into a congressional district without the need for a constitutional amendment. That's understandable. Residents of the District are in the unenviable position of paying taxes and yet having no true voting representative in Congress. However, the plan, known as the District of Columbia Fairness in Representation Act, would achieve a noble goal by ignoble means.
The bill, the brainchild of Rep. Thomas M. Davis III (R-Va.), chairman of the Government Reform Committee, would expand the number of House members from 435 to 437 to allow for a congressional district in Washington. To satisfy Republicans, Davis's bill also would give Utah an additional district.
Utah, which fell just a handful of citizens short of another congressional seat in the last census, is expected to get an additional district as a result of the 2010 census. Under Davis's plan, it wouldn't have to wait.
Davis appears to genuinely favor a voting member for the District, and he saw an opportunity for a trade. "I don't feel it's a sign of weakness in our system to have to consider politics as part of the process," he said. "Political considerations are neither good nor bad, they simply are."
However, in matter of constitutional interpretation, politics is a poor substitute for principle. One of the greatest burdens of being a nation committed to the rule of law is that how we do something is as important as what we do. The Davis proposal would subvert the intentions of the Founders by ignoring textual references to "states" in the Constitution as the sole voting members of the houses of Congress. It also would create a city of half-formed citizens who could vote in the House but not in the Senate.
The controversy began almost 222 years ago with a riot. On Jan. 1, 1783, a large group of Revolutionary War veterans marched on Philadelphia, demanding their long-overdue back pay. Congress demanded that Pennsylvania turn out the militia to quell the rioters, but it refused. Congress then fled, first to Princeton, N.J., then to Annapolis and ultimately to New York City.
By the time congressional leaders gathered again in Philadelphia in 1787 to draft a new Constitution, one issue was prominent on many legislators' minds: the creation of a federal district for the seat of government that would not be a part of any state. The members of Congress wanted to avoid, in the words of James Madison, the unwarranted "imputation of awe or influence" afforded to the host state of a permanent capitol.
The result was Article I, Section 8, of the Constitution, which created a federal enclave exclusively under the authority of the federal government. Virginia and Maryland agreed to pony up land for the enclave, which was gratefully accepted by Congress in 1790. Later, Congress gave some of Virginia's land back. (The caged stones marking the original parameters of the federal district still can be seen in Northern Virginia.)
Not only does the Constitution not give the federal district a voting member in either house, it created the District precisely to be a non-state under the authority of the states represented in Congress. Article I, Section 2, specifies that members of the House are to be chosen "by the People of the several states." Likewise, Article I, Section 3, refers to a Senate composed of two senators "from each state." The makeup of these houses was a delicate balance, and it was a primary focus of the Constitutional Convention.
While the courts have recognized that Congress could give the District many of the same institutions and procedural rights as states, they have never suggested or ruled that Congress can create a new, fully voting member of Congress without a constitutional amendment. Indeed, when Congress wanted to give D.C. residents a voice in the election of the president, it passed the 23rd Amendment, ratified in 1961. That change notably gave the District electoral votes to which it "would be entitled if it were a State."
Now, after failing in 1978 to ratify a similar amendment on voting rights for the District in both houses, voting-rights advocates want to avoid the constitutional process through a simple vote in Congress. Thus the Davis proposal becomes a celebration of contemporary politics over constitutional principle.
The way to achieve full representation for citizens of the District is to return the city to Maryland and reduce the federal enclave to the core of Capitol Hill and a few of its closest blocks. That is precisely what occurred when the Virginia land taken for the District was "retroceded" to the commonwealth in 1846.
Of course, strong political forces in the District and Maryland would not support retrocession. For one thing, Robert L. Ehrlich Jr. likely would be the last Republican to hold the governorship of that state for some time. Yet before we create hybrid constitutional entities, we should use the most obvious vehicle for giving voting rights to D.C. citizens without a constitutional amendment.
The amendment and retrocession processes are hardly easy, but, to paraphrase Davis, such constitutional considerations "are neither good nor bad, they simply are."
Every weekday JewishWorldReview.com publishes what many in Washington
and the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.
JWR contributor Jonathan Turley is the Shapiro Professor of Public Interest Law at George
Click here to visit his website. Comment by clicking here.
© 2004, Jonathan Turley