Washington DC, April 7, 2009 --  

A bill to give Washington, DC a vote in the House of Representatives is flagrantly unconstitutional. Given a choice between representation and the Constitution, the bill's liberal supporters should choose the latter.

When the Senate passed a bill to give the District of Columbia a voting member in the House of Representatives earlier this year, it kicked off the latest round of bickering about interpreting the American Constitution. This debate took a strange turn last week, when America's new Attorney General, Eric Holder tried to squash a Justice Department legal opinion that the bill is unconstitutional.¹

Holder was trying to help the effort to give voting rights to the District of Columbia, but his attempt to silence the opinion backfired. His heavy-handed behavior has generated more publicity for the non-binding opinion of unconstitutionality than it would ever have otherwise received. That's good news for those who oppose the bill on constitutional grounds, and good news for those who oppose District representation in general. (See Crack Pipe Prospects, The Case Against D.C. Statehood).

But opponents of congressional representation for the District should not be glib. With strong support among Democrats in the House of Representatives as well as the White House, it is highly probable that the law will be passed no matter what that pesky Constitution says.

For all the debate, the Constitution's Article I, Section 2 is excruciatingly clear. It says that Representatives in the House will be "apportioned among the several States." When the 14th Amendment expanded the vote to freed slaves after the Civil War, the language was changed to:

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

Note the repeated use of the word "state." It does not say territory, district or capital city. As Washington, DC is not a state, it'd take some pretty creative reasoning to justify seating a Representative from some alternate geographic area.

Fortunately for proponents, creative reasoning is exactly what American constitutional scholarship is all about. One particular sentence from the Constitution, for example, has been tortured beyond all recognition -- the Interstate Commerce Clause granting Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

Those 16 words have been used to justify countless federal laws and programs. In the 1980s and 1990s, the federal government took this to the absurd, arguing that it had the power to regulate isolated wetlands because they provide a habitat for migratory birds who could fly across state borders.² The Supreme Court struck these regulations down in 2001 on technicalities (while sidestepping the larger constitutional issue), yet even now a number of Senators are trying to resurrect them.³

But if the Interstate Commerce Clause is tortured, the Tenth Amendment is utterly ignored:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Nowhere in the Constitution can you find most of the things the federal government does, and this one sentence explicitly says the government isn't allowed to do those things. How do the Feds get around this? They simply ignore it. And as a result, we have a War on Drugs, several Wall Street bailouts, and most recently, President Obama's promise to guarantee the warranty of every car made by Chrysler and General Motors.⁴ Where the hell is that in the Constitution?

Given how much the Constitution is ignored and abused, and that the Supreme Court is utterly unwilling to strike down the bulk of laws that so flagrantly violate it, does it really matter what the Constitution says? In short, the answer is yes. Because there are those rare occasions where Americans will stand up and defend some select parts of the crusty document -- especially the Bill of Rights -- and in these cases it almost always is used as a basis for a defense of liberty.

This is why liberal and left-leaning Americans, most of whom support voting rights for the District of Columbia, should oppose this law. Is one House member for Washington, DC really worth further eroding the power of the Constitution? Without the Constitution, it would have been impossible to force the Bush Administration to grant habeas corpus hearings to inmates at Guantanamo. And while liberals may trust Obama to protect civil rights, they should remember that the next George W. Bush could be in office just eight years from now.

The Constitution provides at least three legal means of granting District residents a voting member of Congress: 1. A Constitutional amendment, 2. Admission of all or part of the District as a new state, and 3. "retrocession" or return of all or part of the District to the state of Maryland from where it once came.

Every one of these alternatives would succeed in giving representation to the District without further abusing the Constitution. Thoughtful supporters of DC voting rights would be wise to choose one as a means achieving their goal.

Related Web Columns:

Crack Pipe Prospects
The Case Against DC Statehood, July 25, 2000

1. Washington Post, A Constitutional Question, April 5, 2009

2. Gardner, Carton & Douglas (now Dinker Biddle), U.S. Supreme Court Reins in Overreaching Federal Wetlands, January 2001

3. Brownfield Network, Feingold Seeks to Restore Protections of the Clean Water Act, April 2, 2009

4. San Franciso Chronicle, U.S. to Guarantee GM, Chrysler Vehicles, March 31, 2009