February 24, 2009 | Commentary on Legal Issues
When the D.C. voting-rights bill comes up for a cloture vote in the Senate this Tuesday, senators will face one overriding question: Will they uphold their oaths to support and defend the Constitution? If they give the District of Columbia a voting representative in Congress, they will break those oaths.
Article I specifies that "Representatives . . . shall be apportioned among the several States," and this is confirmed in Section 2 of the 14th Amendment. One of the qualifications to be a congressman is to "be an Inhabitant of that State in which he shall be chosen."
Congress itself has recognized that the only way the District of Columbia could get representation was through a constitutional amendment -- Congress passed one in 1977 (the amendment failed to gain the approval of 38 states, and thus didn't take effect).
It also took an amendment -- the 23rd Amendment, ratified in 1961 -- to provide District residents the right to vote for president. If that right could have been granted through legislation, there would have been no need to get so many states to sign off.
The courts have recognized this, too. In 2000, a federal court ruled that D.C. residents were not entitled to representation in Congress: "The Constitution does not contemplate that the District may serve as a state for purposes of the apportionment of congressional representatives." The Supreme Court affirmed that decision.
About the only argument that the bill's proponents can muster is that because the Constitution gives Congress the right to exercise "exclusive Legislation" over the District, it has the ability to provide the District with a House seat.
That's a losing argument. The Constitution's provision giving Congress the power to run the affairs of the District of Columbia -- the seat of the nation's capitol -- doesn't wipe out other parts of the document. Congress could not, for example, restrict the First Amendment rights of District residents.
Furthermore, the very same section of the Constitution also applies to "Forts, Magazines, Arsenals, dock-Yards" and other federal properties. But it would be ridiculous to assert, on the basis of that text, that Congress has the power to award House seats to an army base, federal office building, or Navy pier.
The concept of the District, as outlined by the Founders, was that it should be autonomous and not subject to the whims and outside pressures of a state government. Those reasons, as articulated by James Madison, Elbridge Gerry, and George Mason at the Constitutional Convention, are just as relevant today as they were over 200 years ago.
And while statehood supporters cite the famous American rallying cry "no taxation without representation," that is a false analogy. The entire Congress represents the interests of the District, because every single member of Congress works in the District.
The numbers bear this out. Every year, Congress appropriates millions of dollars for the District. D.C. did so well under the stimulus bill that Eleanor Holmes Norton, D.C.'s nonvoting representative, crowed on her website that "Norton's stimulus package puts D.C. ahead of seven states." The District has a smaller population than 49 of the states (Wyoming being the exception).
This is not an attempt to secure representation for District residents' interests, then, but a raw grab at political power. It will establish a new, permanently Democratic seat in the House of Representatives. The bill attempts to balance that by adding a second seat as well (bringing the total number of representatives to 437), and giving that seat to Utah. But unlike D.C.'s seat, Utah's extra seat is guaranteed only until next year's Census -- after which each state will be assigned seats in proportion to its population. The extra seat will almost surely be transferred to a Democratic state like California or New York.
The fact that the bill is unconstitutional and politically motivated, however, does not mean the courts will strike it down. The reason is that in order for a court to strike down a law, someone needs to challenge the law before the court -- and in order to challenge the law, a plaintiff needs to demonstrate standing, or that the law has harmed him in some way. Even if the bill contains a section that purports to provide lawmakers standing, there is grave doubt that the courts would respect it. Members of the Senate sued in 1997 regarding a statute that contained such a section, but the Supreme Court ruled that the senators lacked the direct and personal injury required for standing. The type of political injuries that the D.C. bill would inflict might not be sufficient to meet this standard, either.
Statehood proponents know that there is insufficient support nationwide to amend the Constitution to give D.C. a voting member of Congress. They're willing to violate the Constitution instead. It will be a sad day in American political life if they succeed.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation. He is also a former commissioner on the Federal Election Commission and counsel to the assistant attorney general for civil rights at the Department of Justice.
First Appeared in the National Review Online