D.C. and the Constitution

The gang over at the Plank have been hammering away at this representation-for-D.C. issue, so I thought I'd see how TNR's editorials on the subject dealt with difficulty that any legislation granting the District a voting representative in the House is almost certainly unconstitutional. Here's their entire take on the constitutionality issue:

McConnell and Bush base their opposition on ostensibly constitutional grounds, arguing that the Constitution grants congressional representation only to states, which, of course, the District of Columbia is not. But the legislation, as it's crafted, addresses these concerns--since it provides for expedited judicial review of the bill if it's challenged after becoming law. As Republican Senator Susan Collins of Maine said in voting for the bill in committee last week, "I have concluded that the constitutionality of this legislation is a close call and is best resolved by the courts and not by this committee."

Er, okay, I guess. So Congress has no responsibility to consider the constitutionality of the legislation it votes on, beyond ensuring that the Supreme Court rules on it ASAP? Really?

And even if it's okay for Congress to punt the question up to the Court, shouldn't an opinion magazine that supports the measure at least take on the (sound-seeming) constitutional arguments against it?

Update: Also, isn't NR's position - a vastly smaller federal district centered around the Mall and Capitol Hill, and then retrocession of the rest of the District to Maryland - a vastly better option? Yes, it's unlikely to happen, since Maryland would have to agree to the transfer, but it seems at least as a plausible a possibility as the Supreme Court signing off on the current proposal.

Comments

Why is the effort to allow DC residents to have a representative so "controversial"? Because it would be a black majority seat. No other group has to "earn" its right to vote. You, Mr. Douthat, and everyone else who opposes a represenative for DC are racists. When people say it's the principle of the thing, it isn't the principle of the thing. When people say it's the Constitution, it isn't the Constitution. It's because DC is black, and therefore has to be kept down.

Posted by Alan Vanneman | September 19, 2007 2:59 PM

While not fully endorsing the tone or substance of Alan Vanneman's comment, I'd like to note that the whole argument that "this should be addressed through a constitutional amendment or retrocession to Maryland" would be a lot more convincing if the people saying it EVER spoke in support of such an amendment when the District was not on the verge of getting voting rights some other way. You will never see Mitch McConnell sponsor an amendment for DC statehood, and as a result it seems like the constitutionality argument is a bullshit excuse to avoid any meaningful action.

Posted by Dan Miller | September 19, 2007 3:02 PM

Are the residents of DC in a prison? If representation were that important then they could move to wherever they wished to be represented. It seems that this is really just political volleyball. If DC were majority white and, say, Mormon, would Democrats be pushing it? Of course not. This is the ultimate Beltway issue, completely unimportant to anyone that doesn't live there.

Posted by open faced club sandwedge | September 19, 2007 3:16 PM

open faced hit the nail on the head: No one cares that this population is being taxed with no representation. After all, it don't concern him! And besides, not's not like the founding fathers gave two shits about taxation without representation!

The fact that they're mostly black, well ... for conservatives, that's just icing on the cake. Lets 'em shore up the base.

Posted by Woody Bombay | September 19, 2007 3:46 PM

DC is a lot less black than it used to be, at 58% and falling by the day. Blacks are moving out, while white gentrifiers and Hispanic immigrants are moving in.

As a Virginian, I like the retrocession idea. If possible, I'd like to reroute the Potomac so that Fairfax and Arlington counties could be given to Maryland, too. I'd miss Arlington, but Virginia and Maryland would both be better for it.

Posted by Cyrus | September 19, 2007 3:48 PM

"Are the residents of DC in a prison? If representation were that important then they could move to wherever they wished to be represented."

Are the residents of North Dakota in a prison? If representation were that important then they could move to wherever they wished to be represented.

I'm trying, and failing, not to get extremely pissed off at the crass excuses bandied around for the lack of democracy in our capital city. Yes, the bill currently under consideration is blatantly unconstitutional and should probably not pass. But this option came up because the most straightforward solution to the problem, amending the Constitution to give DC a Congressman, is being blocked by the same people who complain about the unconstitutionality of this bill -- Republicans who find it politically convenient to deny representation to a majority black and Democratic city.

Let's not pretend that the Constitutionality of the bill is the issue. This was a compromise designed to circumvent the real opposition, which is the desire of Republicans to preserve their undemocratic one seat advantage in the House.

Posted by LaFollette Progressive | September 19, 2007 3:56 PM

Would retrocession to Maryland be good for DC? As it is, their budget is appropriated by Congress, which tends to give DC lots of money even if it's not franchised and yanks it around with goofy conditions on funds. If they became part of Maryland, they would have to compete with Baltimore for resources.

Posted by Nicholas Beaudrot | September 19, 2007 3:59 PM

Also, isn't NR's position - a vastly smaller federal district centered around the Mall and Capitol Hill, and then retrocession of the rest of the District to Maryland - a vastly better option?

The big procedural problem with this is that you'd have to repeal the 23rd amendment to the Constitution. Might as well just amend the constitution to say DC gets represented in the House as if it were a state.

Posted by right | September 19, 2007 4:14 PM

I would support a partial retrocession to Maryland. DC would be considered part of Maryland for federal election purposes (Congressional Apportionment, Senate and Presidential elections) while remaining autonomously self-governed.

Maryland would undoubtedly get an extra Dem House seat and an extra Electoral vote in the process. As a compromise, DC would probably give up its 3 electoral votes.

Posted by LaFollette Progressive | September 19, 2007 4:15 PM

The bill as written is blatantly unconstitutional. The Congress swears an oath to uphold the constitution, just as the officers of the courts do. They should not violate that oath or pawn their constitutional responsibilities off on the courts.
Whether or not DC deserves statehood or retrocession is an entirely different argument that can be had when an actual constitutional bill is presented to Congress. As of now, it is entirely irrelevant if the Republicans have racist reasons in addition to their constitutional ones for opposing this bill, as long as the constitutional reasons are absolutely sound.

Posted by jamie | September 19, 2007 4:44 PM

Oh, so now we're caring about what's constitutional and what's unconstitutional again?

Good to know.

Posted by Woody Bombay | September 19, 2007 4:51 PM

Congress never passes bills which are later found to be unconstitutional by the judiciary.

After all, the Congress swears an oath!

Posted by keatssycamore | September 19, 2007 5:18 PM

Apparently the 'should' vs. 'would' distinction is lost upon Woody and keats.

Posted by jamie | September 19, 2007 5:22 PM

DC has never had representation in Congress, right? even back in the days when only whites could vote.

people who play the race card when it's not the issue only ensure that future legit claims of racism get less of a hearing than they should.

retrocession seems the cleanest solution, assuming Md. would have it.

Posted by chris | September 19, 2007 5:22 PM

Basically, the rest of America sees the residents of DC as parasites who live off their taxes, so giving them political power as well would be unfair.

And, no, for once, this isn't much of a race thing. Tourists don't spend a lot of time in the black 3/4ths of the District, so their mental picture is of an extremely affluent white city populated by tax-consumers and influence peddlers who live very nicely off the sweat of the rest of the country.

Posted by Steve Sailer | September 19, 2007 6:26 PM

Ross: "shouldn't an opinion magazine that supports the measure at least take on the (sound-seeming) constitutional arguments against it?"

"Er, ok" - how about the right to self-determination and, subsequently, representative government is inalienable and supersedes constitutional legalese. Does that do it for you? If Congress can have a chaplain (which is certainly unconstitutional) DC can have the right to vote.

Posted by berger | September 19, 2007 6:32 PM

And, no, for once, this isn't much of a race thing. Tourists don't spend a lot of time in the black 3/4ths of the District, so their mental picture is of an extremely affluent white city populated by tax-consumers and influence peddlers who live very nicely off the sweat of the rest of the country.

Oh please! Do you really expect us to believe that most Americans do not know that DC is a majority-black city? I'm not saying that this is why DC is being denied voting rights but your assertion is fantastic (in the literal sense), if for no other reason than that it is difficult to name a major American city, especially outside the Sunbelt, that isn't majority-black.

Posted by Roberto Rivera | September 19, 2007 6:38 PM

Roberto wrote in from some parallel universe in which it is "difficult to name a major American city, especially outside the Sunbelt, that isn't majority-black".

In the universe I (and hopefully most of Ross' readers) inhabit, NYC was 26.6% black according to the 2000 census, though perhaps the last few years have seen a vast migration. We'll skip LA (sunbelt) and go to Chicago and get 37%. It's statistically plausible that a (slight) majority of the (living) potential voters of Chicago are black. I doubt that it's statistically plausible about NYC, though.
(http://factfinder.census.gov/servlet/QTTable?_bm=y&-context=qt&-qr_name=DEC_2000_SF1_U_QTP3&-ds_name=DEC_2000_SF1_U&-CONTEXT=qt&-tree_id=4001&-all_geo_types=N&-redoLog=true&-geo_id=04000US36&-geo_id=16000US3651000&-search_results=16000US3651000&-format=&-_lang=en, scroll down half a page to get NYC rather than the new york metro).

Posted by empiricus | September 19, 2007 7:23 PM

As I already said at Matt's:

The reason I don't like the idea of D.C. as a state is because it would be geographically doomed to remain a tiny state (and therefore disproportionately represented in the Senate) forever. Yes, it's unlikely that one-representative states Wyoming or Montana or the Dakotas will fill up with people anytime in the next century or in the next several centuries for that matter, but theoretically they always could, as Arizona has done(from one representative as late as the 1940s to eight today) has done and as Nevada has begun to do(from one representative as late as the 1970s to three today). D.C., however, is under permanent geographical constriction. Even Rhode Island (my de facto current home as a Brown grad student although not my legal residence) and Delaware are large compared to D.C.

Since Maryland is unlikely to accept retrocession, the best viable alternative, is probably the current proposal to give D.C. House representation, and keep its three electoral votes, but not to create another mini-state by giving it Senate representation. This may not be fully fair, but it does give D.C. some representation in Congress, which is better than none. I believe, however, that this must be done as a constiutional amendment rather than a mere bill.

Posted by James Kabala | September 19, 2007 7:30 PM

There should have been no comma after alternative, of course.

Posted by James Kabala | September 19, 2007 7:33 PM

Finally, it's worth noting that Bush himself set this kind of bad precedent by signing McCain-Feingold with the claim it would be up to the courts to decide if it was unconstitutional.

Posted by James Kabala | September 19, 2007 7:34 PM

Basically, the rest of America sees the residents of DC as parasites who live off their taxes, so giving them political power as well would be unfair.

I don't live in D.C., and neither do 95 percent of the people I know. No one believes this. It's just a flat-out statement of fantasy.

Of course, so is the "America doesn't know there are blacks in D.C." stuff. Honestly, how 1) divorced from reality, or 2) dishonest and cynical do you have to be to say that kind of thing?

Posted by Woody Bombay | September 19, 2007 8:29 PM

Re: If Congress can have a chaplain (which is certainly unconstitutional)

What is unconstitional about that? Is there perhaps some invisible clause that states "Congress shall not employ the services of any minister of religion"?

Posted by Jonf | September 19, 2007 10:00 PM

"Er, ok" - how about the right to self-determination and, subsequently, representative government is inalienable and supersedes constitutional legalese.

So we should ignore inconvenient parts of the Constitution? (Well, at least this is one position that has bipartisan support).

D.C. cannot get statehood without a Constitutional amendment. If legislation is passed doing so, it eill almost certainly be sturck down by the Supreme Court. So isn't voting for bills like this just the same sort of moral posturing that people do on flag-burning, where they pass a bill they know will never be enforced?

Posted by Glaivester | September 20, 2007 2:08 AM

Roberto wrote in from some parallel universe in which it is "difficult to name a major American city, especially outside the Sunbelt, that isn't majority-black".

I stand corrected. I shouldn't have added the bit starting with "if for no other reason . . ." I still maintain that Sailer's contention that America thinks of DC as an "affluent white city" is flat-out wrong.

Posted by Roberto | September 20, 2007 7:47 AM

I remember during the last time this was debated a Republican from Virginia bringing up a really good point about the constitutionality of this bill. Aside from questions about whether DC is excluded from being represented because it isn't a state and whether or not this causes 14th Amendment issues, what about the Utah Compromise? If the current legislation were to pass citizens of Utah would be represented by two congresspersons (one for their district and one statewide). How could that possibly square with the equal protection clause of the 14th Amendment? More specifically, how could it be reconciled with Baker v. Carr?

Posted by badger | September 20, 2007 12:20 PM

Has anybody been to Northwest Washington DC lately? It's unbelievably affluent.

Your tax dollars at work.

And, as was reported lately, at current trends, DC as a whole won't be majority African-American anymore in another decade or two. The population is getting whiter every year.

Posted by Steve Sailer | September 20, 2007 11:18 PM