The District of Columbia as a Fake State - Some proposals in Congress have a recurring lifespan, patent political and clearly unconstitutional though the proposals may be. Doubtless foremost in this unhealthy category is legislation to create for Washington, District of [Columbia or Confusion?] a voting Representative in Congress, just as though it were a State of the Union and the Constitution were to be ignored.
This Commentary has addressed ramifications of the subject - albeit with updating and some repetition - on August 26, 2004; May 17 and November 15, 2006; April 17 and November 1, 2007; and July 17, 2008. The latter is reprinted herewith. The others are available on the Free Congress Foundation Website, http://www.freecongress.org.
Why address the subject again? It’s because the proponents of this gambit of unconstitutionalism, as predicted, now having a heavy majority in both Houses of the 111th Congress and a supportive Presidential Administration, again are beating the drums of triumph. Specifically H.R. 157 is pending in the House of Representatives, doubtless to be passed. S. 160, the companion bill in the United States Senate, passed on February 26 on a vote of 61 to 37.
Some of the proponents seek creation of two United States Senators and one Member of the House of Representatives. Officially, and for pragmatic political reasons, the pending legislation would create only the latter. This is riling those who champion not only one Representative but also two Senators. Believe it or not, there is an elected so-called “office” in Washington, D. C. styled “Shadow [United States] Senator.” A number of advocates of the full board - two Senators and one Representative, evidently including this individual, are not as happy as one might expect them to be with the latest development. They fear, probably correctly, that if Congress legislated and the President signed into law a bill to create a full voting Representative in Congress, or “Congressman” as they often in common parlance are called - that would dampen, maybe kill, any effort to go the legal route to grab all three seats - that is, to amend the Constitution.
Article I, Section 2, of the Constitution pertinently reads: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . .” and also sets forth eleven other provisions expressly linking Congressional representation to Statehood.
Consistent with the Constitution, those who advocated conferring upon District of Columbia residents the right to vote for President/Vice President of the United States advocated amending the Constitution. Presidents Dwight D. Eisenhower and Richard M. Nixon, as well as a Democratic Congress, went along with this effort. The result is Amendment XXIII, proposed by Congress on June 17, 1960, ratified by the requisite 38th State on March 29, 1961. (Two more States subsequently ratified it and one, Arkansas, subsequently rejected it. The nine States that neither ratified nor rejected it the Amendment as a matter of law had the same effect as having rejected it.) An irrelevant statistic: In 1960 the District of Columbia had a larger population than 13 of 50 States. It since has shrunk - roughly 800,000 to less than 600,000, which population (leaving aside the question of how many are full-time or merely legal residents) is larger than only Wyoming.
Not surprisingly, practical politics dominate and motivate the recurring efforts to infiltrate voting seats into Congress. In 2004 D. C. voted 89% for the Kerry-Lieberman ticket, in 2008 93% for the Obama-Biden ticket. The lone D. C. Delegate to Congress (who presumptuously styles herself “Congresswoman”) effectively is unopposed. One Republican occasionally makes it to the elected City Council; everybody else is Democratic.
This time, with the current Administration and the 111th Congress, a statute to create a voting Member of Congress almost assuredly will be enacted. Litigation undoubtedly will follow. This Commentary does not offer structured legal opinions but the author would not anticipate that those Federal courts which treat any ensuing litigation would find the statute constitutional.
It is most unfortunate that proponents of voting rights for D. C. Residents do not advocate retrocession to the State of Maryland of the residential and commercial portions of the District of Columbia. D. C. liberal voters would find a receptive home in Maryland, a liberal State. They also would have the same representational entitlements as any other American citizen - as does the citizenry of Arlington County and a portion of the City of Alexandria, Virginia, an area retroceded in 1846, effective 1847.
Marion Edwyn Harrison
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation. http://www.freecongress.org/
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United States Senators and a Congressman from the District of Columbia? The Agitation Pragmatically May Be Suspended
By Marion Edwyn Harrison, Esq.
July 17, 2008
This Commentary six times, as there has been legislative activity or threats of such, has discussed the efforts of various liberal Democratic, and one Republican, Members of the House of Representatives to create a fully voting House seat. The effort seeks to do so without bothering with the uncertainty and possible defeat of the Constitutional amendment which many (but not all) scholars, and this writer, consider essential to achieve that result. (These columns were disseminated to thousands of e-mail addressees and posted on the http://www.freecongress.org website on August 26, 2004; May 17 and November 15, 2006; April 17 and November 1, 2007; June 10, 2008; and continue accessible.)
The goal, of course, is to elect in perpetuity two liberal United States Senators and one liberal Representative in Congress. Inasmuch as the District of Columbia votes a far higher percentage Democratic than does any State of the Union, the result would be guaranteed were those three offices to exist.
The last loud effort occurred in April 2007, when the House, 241 - 177, passed H. R. 1905, only to have its Senatorial counterpart, S. 1257, defeated for lack of votes to curtail debate. Since then three phenomena have occurred to stall, and probably to defer into 2009, any serious legislative effort. In likely order of weight, the three phenomena are: (1) Most Congressional advocates either are convinced or strongly hope the Nation is heading for a liberal Presidential and more liberal 111th Congress sweep. (2) The GOP Member who provided the media illusion of strong bipartisan support, as well as undeniably talented leadership, Virginia Representative Thomas F. Davis, III, realistically seeing defeat, abandoned any effort to succeed retiring Senator John W. Warner; and Davis’ wife, interested in succeeding her husband in the House, was defeated for re-election to the State Senate. Thus, the bipartisan illusion faded and it became obvious that the issue had minimal support in Virginia - hence, possibly the same in many other States. (3) Some supporters of the cause are concerned that any such statute in lieu of a Constitutional amendment would be held unconstitutional.
This is not the place for a Constitutional argument but one can summarize. It took Amendment XXIII, originated during the Eisenhower Administration, ratified to finality March 29, 1961, to give the District the Presidential vote. The Constitution, Article I, Section 2, clearly provides that the House “shall be chosen . . . by the people of the several [S]tates . . .” Article I, Section 4, accords each State legislature the right to regulate Congressional elections, leaving Congress only a limited right “to make or alter such regulations . . .” Article I, Section 8 confers upon Congress power “To exercise exclusive legislation . . .” over the physical seat of the Federal Government. Constitutional text, as well as legislative history, are clear that the Founders wanted a small (no more than 10 miles square) area not part of or influenced by any State as the Nation’s capital. Then as now, nobody is forced to live in D. C.; only a dwindling population (full of transients, foreigners and second homes) does; and those people do have the right to vote for President.
We’ll see what happens legislatively - and if need be, constitutionally - if November 4 produces a strong leftward sweep.
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