The Best Way to Give D.C. a House Seat Is Also the Only Way

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32 Responses

  1. Brett says:

    I have two concerns about your argument, one general and one specific. First, I’m not sure that I understand your claim that a legislator cannot vote for the DC House seat bill “with a clear conscience.” This seems to impose a rather stringent duty on legislators in controversial cases.

    With or without judicial overhang, a legislator is probably justified in voting for a bill if there are nontrivial reasons to believe that it is constitutional. Dinh and Starr (among others) have provided those reasons. A good measure of whether a reason is non-trivial is whether it cuts against partisan preference.

    Second, you object to the DC House vote bill by extending the plenary power principle to cover a hypothetical bill that gives DC some number of Senators. However, any plenary congressional power is probably limited by Article V’s state consent clause.

    I guess one question might be how state “consent” for Article V purposes manifests itself, and what “equal suffrage” means. Perhaps the former would require unanimity in the Senate. And it is intuitively appealing to say that Article V “equal suffrage” rests on a basic notion of who is entitled to be represented in the Senate for both Article I and Article V purposes (only states, with the exception of the VP).

  2. Brian Kalt says:

    On clear consciences, I guess I am uncomfortable with the notion that a member of Congress could say “well, I personally subscribe to Turley’s argument (that the bill is unconstitutional), but if Starr and Dinh are saying it’s OK, then I can vote for it with a clear conscience.”

    I think that Hasen was probably thinking more of members who don’t have a personal opinion one way or the other, and can throw up their hands with a clear conscience, because Starr’s and Dinh’s arguments are not frivolous (or, as you put it, non-trivial).

    I don’t disagree with that. But I would like the members of Congress to try to reach an independent judgment about the bill’s constitutionality if at all possible. By my count, over a third of the members of Congress are lawyers (and of course the president is). Hoyer is. And most of the others could at least give it a try. If and when they do pick a side, I think that it should not be Starr/Dinh’s.

    I concede that someone could, in clear conscience, take the other side after thinking about it. But I don’t think that they could, in clear conscience, not even think about it.

    On your Article V point, you played right into my hands, by my reading at least. The Equal Suffrage clause says that no state can be deprived of its equal suffrage in the Senate. But the clause restricts constitutional amendments. (I think that means that the amendment would require ratification not only by three-fourths of the states, but also by all of the states who are adversely affected.) If there is some other way to deprive states of their equal suffrage in the Senate, I don’t think the clause applies. Some such ways are not constitutionally problematic–say that a majority of the Senate votes not to seat a senator from Michigan because he isn’t 30 years old yet. Even though that would deprive Michigan of equal suffrage in the Senate, I think that the Senate vote would be valid even if the other Michigan senator was in the “nay” column. The clause just wouldn’t apply.

    But the clause would also not apply to a law that gave Michigan three senators. That law would be unconstitutional, but because it violates Article I’s “two senators per state” requirement, not because it violates Article V.

    If a law gave D.C. three senators, that would violate the “two senators per state” requirement too. But–my question goes–why wouldn’t the requirement also be violated by a law that gave D.C. zero senators, if D.C. is enough of a “state” to get a representative?

    [By the way, lest anyone dismiss the three-senator bill as a silly hypothetical, consider this. What if Congress (moved to action by my last post, on overseas voting) decided to let American citizens who reside overseas participate in the political process through D.C. instead of through the states where they last resided? There would be millions of citizens voting in federal elections from D.C. This would dilute the votes of the ones who actually lived there. So the law could give D.C. multiple representatives, and multiple senators--say, two for D.C. residents and two more for overseas citizens. OK, maybe it's still s silly hypothetical, but not a totally random one.]

  3. Vince Treacy says:

    Professor Hasen writes: “If the current D.C. voting rights law is indeed unconstitutional, then the only way to get D.C. a full House member is the way that gave district residents the right to vote for president: a constitutional amendment that would either make D.C. a state, give it a member of Congress (and possibly two senators) without making it a state, or merge D.C. back into a neighboring state, such as Maryland.”

    In this sentence, you state that the “only” way to get a D.C. House member is a constitutional amendment. The amendment would either make D.C. a state, or merge it back into a neighboring state.

    I disagree. First, an amendment is clearly unnecessary for merging back into a neighboring state, that is, retrocession. Alexandria and Arlington were returned to Virginia in the 19th Century. It required two pieces of legislation: and Act of Congress for the federal government to give up its rights, and an act of the Virginia legislature to accept the lands. That is “all” that is necessary for retrocession to Maryland.

    The problem is that all available evidence shows that Maryland voters are unwilling to accept the District. A poll in the 1990s showed no more than 25% for this. So it is an illusory solution. But no constitutional amendment is needed.

    Second, a constitutional amendment is unnecessary for statehood. The text of the Constitution expressly states that new states may be admitted. The only limitation is that no state may be created from the territory of an existing state without its consent. Massachusetts consented to the creation of Maine as part of the Compromise of 1820.

    Statehood legislation would reduce the size of the Seat of Government to the White House, federal offices and parks. There would be no citizens. The President and First Lady would vote and continue as citizens of their home state. The remaining area could then be admitted as a state.

    Third, a constitutional amendment could be attempted. It could grant the District a single House voting member, perhaps linked with legislation giving an extra seat to a solid Republican state upon ratification. It could also grant two Senators, but that has been tried and failed.

    So that bland statement that a constitutional amendment is the “only” way is incomplete.

  4. A.W. says:

    Brian

    Agree on the constitutional analysis, but not so much on the policy argument. Washington, D.C. should not have representation, period. There needs to be one place in our nation where the Federal Government can run roughshod over the local authorities, to make sure things are done up to snuff. It is a necessity of national security.

    And you don’t like it? move. Seriously, MOVE. It’s a 10 mile by 10 mile square, mostly, which means you only have to go pretty short distance in any direction to have your full equality restored. As a greater-D.C. resident I faced exactly that choice, and I made it. I live in Northern Virginia for precisely that reason.

    For the life of me, I cannot understand the complaint of a group of people who live there voluntarily, knowing that they would lose the right to (equal) vote, then whining about the loss of the right to vote. They made their bargain: why should we save them from their own choices?

    But if we have to do something like that, then the next best answer is to reabsorb it back in Maryland, just as the Alexandria part of Washington, D.C. was reabsorbed back into Virginia way back when. But I oppose the entire project. The framers were right to do this, and a bunch of whiney demagogues doesn’t change it.

  5. Vince Treacy says:

    AW, these are the same tired old ignorant arguments posted over and over at the Washington Post. Here is my response:

    Before the opponents of D.C. voting rights get up a head of steam, I just wanted to post an advanced look at the old, tired, thoughtless arguments in opposition.

    There are THREE valid means for full representation for DC. They are (1) constitutional amendment, (2) retrocession with the express consent of Maryland (or, Virginia, or some other state) or (3) statehood.

    Before you suggest return to Maryland, remember that retrocession has never won the support of the District’s population, or that of the people of the state of Maryland. A Wirthlin Group poll conducted in Oct.-Nov. 1994 found that only 19% of DC residents supported retrocession and only 24% of Marylanders supported the idea. The Maryland State Legislature would have to ratify any DC retrocession bill passed by Congress, and is very unlikely to approve. Alexandria and Arlington were as returned to Virginia ONLY after the Virginia legislature gave its approval.

    Before arguing that if DC residents want the vote, then leave and move to a state, understand that many residents cannot afford to move. King George III could have told the colonists to move back to England to vote. Most voters in DC are African-Americans. Remember that, for nearly 100 years, until the Voting Rights Act of 1965, most African-Americans in the south were denied the right to vote. They, too, were told by the authorities to leave and move to another state if they wanted to vote. The United States finally decided that their answer was not enough.

    Before arguing that statehood requires a constitutional amendment, remember that the Constitution expressly provides for the admission of new states in Art IV, Sec.3, as long as no new state is formed within the jurisdiction of another. That is the only limitation. Any state of DC would constitute all the present land outside a new capitol district. The Capitol District can be reduced in size, since the Constitution only says that it cannot exceed 10 miles square.

    Before saying that DC is too small, note that the State of DC would have more residents than Wyoming and almost as many as Vermont. It would be small, but Rhode Island is far smaller than Alaska, and still is a State. DC, with 68 square miles, would have 0.044 per cent of the square miles of Rhode Island, which is 2545 square miles. Rhode Island has 0.0023 per cent of the square mileage of Alaska (656,425, according to the web), yet it is still a state. There is no size requirement for States in the Constitution. It was framed by We, the People, not we the territory.

    Before you say that the founders wanted it this way, just remember that the original Constitution sanctioned slavery, contained a fugitive slave clause, counted slaves as 3-5ths of a person, denied the vote to women, and delayed abolition of the slave trade for 20 years. They got a few things wrong, and denial of the vote to the capitol district was one of them.

    Before stressing the need for an independent capitol area subject to sole congressional control, remember that any bill for statehood would establish a Capitol District that would include only buildings and parks, with no people. The President would vote in his or her home state. Congress would have complete authority over its own national capitol services area, with multiple police forces and all United States Armed Forces for protection.

    So the US need a place to run roughshod over the authorities, that is, people. Who are you to say that? The Congressional meddling has causeed far more problems than solutions. They mandated slavery until 1864 and JimCrow until 1954.

    And the accusation of whining. No one is whining except you about some people who desire self-government, like the residents of all other democratic capitol cities on the planet.

    Congressional supremacy in DC is fine for those who, like you and the Chinese and a lot of other tin-pot colonialists, do NOT beleive that all men are created equal, that governments derive their just powers from the consent of the governed, and that government if of the people, by the people, and for the people.

  6. Brett says:

    the clause restricts constitutional amendments

    Fair enough, but structurally the ban is probably significant outside of the Article V amendment context – I’ve heard it argued that the clause is the closest analogue we have to the dignity clause in the German Grundgesetz. (Whether Robert Dahl is right that this arrangement makes little sense is another story.) This reading sets up tensions with Article I qualifications, to be sure, but qualifications are necessary to settle boundary issues.

    We probably agree on the conscience point in the main, but disagree on the extent and significance of indeterminacy in constitutional argument.

  7. BDG says:

    It’s worth noting that the “if you don’t like it, move” argument could be applied to any civil right — and, in fact, has been made over and over every time the supreme court has considered incorporation of a bill of rights provision. The reason, though, that fundamental political rights are guaranteed to everyone, regardless of residence, is that they’re, um, fundamental. There are some rights we shouldn’t have to pay a price to enjoy. That’s also why we the rule of ex parte Young: so civil-rights holders don’t have to risk jail to press their claim to constitutional protection. So, when you say, “if you don’t like having no vote, move,” you’re also saying you’re fine with poll taxes. And with allowing states to restrict free speech rights.

  8. A.W. says:

    Vince

    > Before you suggest return to Maryland, remember that retrocession has never won the support of the District’s population

    Of course they don’t. they want full statehood because it maximizes their political power. But reabsorption is in fact the fairest option.

    > or that of the people of the state of Maryland.

    What, you mean the people of Maryland don’t want to introduce giants in the political realm like Marion Barry into their system?

    > understand that many residents cannot afford to move.

    That’s absolutely laughably not true. I have actually looked for a home around here and I know. No one is trapped in D.C. in fact a lot of people pay a premium to live there.

    > King George III could have told the colonists to move back to England to vote.

    Right. crossing an ocean in 1776 is the same as going about 10 miles in 2009.

    > Most voters in DC are African-Americans.

    Thus the race card is played.

    > Remember that, for nearly 100 years, until the Voting Rights Act of 1965, most African-Americans in the south were denied the right to vote.

    Indeed, I remember that in 1865, Congress, exercising its dominion over the District of Columbia and against the overwhelming will of the (mostly white) people living there at the time, voted to give black people the vote in D.C. I also remember that Washington, D.C. was one of the few places in the South where people could marry without regard to color, allowing the Lovings to marry and go back to Virginia and set off the litigation that led to Loving v. Virginia. These are things that probably would not have happened but for the dominion practiced in our capital. Indeed, our capital probably would have been segregated far beyond 1954, so that dignitaries coming from African countries would have been subjected to legally sanctioned discrimination, which I don’t think would give them the warm feeling about America we were trying to transmit. Race relations is a perfect example of why Congress should have complete and unquestioned dominion over the capital, because racism has traditionally been more of a local problem than a national one.

    > They, too, were told by the authorities to leave and move to another state

    Again, full voting rights is 10 miles away. And by the way, this is actually done without regard to color. Only demagoguery on the race issue makes this an issue at all. This has been the policy for over 200 years, reaching back to the day when black people were scarce in the district. In other words they did this to white people, too, so clearly racial animosity is not the culprit.

    > Before saying that DC is too small, note that the State of DC would have more residents than Wyoming and almost as many as Vermont.

    Yes, and what we should do is compound the inequalities in our constitution rather than ameliorate them.

    > Before you say that the founders wanted it this way, just remember that the original Constitution sanctioned slavery

    Before I said it? I already said it. and our founders got more right than wrong. In fact, except for the issues of racism and sexism, they were battling pretty close to a thousand. But thank you for playing the race card again.

    > Before stressing the need for an independent capitol area subject to sole congressional control, remember that any bill for statehood would establish a Capitol District that would include only buildings and parks, with no people.

    And remember that this wouldn’t be enough. We have national security and foreign policy reasons for need national dominion there. The example of how dominion over the capital kept our foreign visitors from being subjected to racial discrimination is a perfect example of that.

    > So the US need a place to run roughshod over the authorities, that is, people. Who are you to say that?

    A person who happens to notice we are at war, and that Washington, D.C. residents actually supported a crackhead for mayor, who defended himself by saying, “But she called me chicken!”

    > And the accusation of whining. No one is whining except you

    Yeah, nothing at all whiney about saying “poor me, I can’t live 10 miles down the road.”

    > like the residents of all other democratic capitol cities on the planet.

    Well, if all the other democratic capitals jumped off the Brooklyn bridge, would you do that too?

    > a lot of other tin-pot colonialists, do NOT beleive that all men are created equal

    Bwahahahaha. Washington, D.C. is a colony, you say? And please, all people are created equal, and are equally capable of moving to a new house down the street if they want full and equal voting rights so badly. You are the one who wants to pretend that Washington, D.C. residents, who you repeatedly note are very often considered “African American” are apparently incapable of moving 10 miles away. If discrimination against D.C. residents is racism as you seem to believe, then your infantilizing of them is what is truly insidious. It’s the “soft bigotry of lowered expectations.”

    And by your logic, you are arguing that the founders did not believe those things, even as they said those things and enacted a constitution that specifically imagining us doing exactly what we are doing in Washington, D.C. Who knew our founders were colonialists? Or for that matter racist against “white people?”

    Of course it is a departure from the ordinary principle of self-government and that is why it is such a small exception. No principle is absolute with no exceptions. Indeed our very rebellion against England wasn’t done very “democratically” with often our answer to a real and substantial group of Americans who didn’t want to rebel “if you don’t like it leave. Or really, we will run you out!”

    So out of manifest necessity they made a small exception to the principle of self-government. And yes, it was a small and ultimately harmless exception. Even back in 1789, it wasn’t hard to avoid living in Washington, D.C. and with transportation improvements that has only become more true. No one is forced to live in D.C. Well, except Barrack Obama and Joe Biden.

    And the fact that Washington, D.C. residents get all this attention, while there is virtually no attention to more outrageous examples of true colonialism, like Porto Rico, is just a testament to the irrational demagoguery on this issue. With Porto Rico there really is an outrage. Full and equal rights is not so easy to obtain, and its not our nation’s capital with the unique concerns that come with that. and there is it time for us to either s— or get off the pot. Either make them a state, or at least put them on a real path to statehood, or cut them loose. Ditto with all those other scattered colonies (I can’t even hope to name them all). You look at Porto Rico and realize these Washington, D.C. residents are just being whiney.

  9. citizenw says:

    A.W.:

    Its Puerto Rico to you (not Porto Rico).

    And stop whining about it.

    Your (belated) defense of Tories is noted.

  10. Brian Kalt says:

    Vince,

    The reason that you would probably need a constitutional amendment even for retroceding DC to Maryland is that the 23rd Amendment would still be there, giving three electoral votes to the rump district. Presumably, you would need to amend the amendment.

  11. A.W. says:

    Citizen

    I would rather spell PR wrong then get the issue wrong. With the sole exception of D.C. the framers’ intent was for territorial status to be temporary. What we have done with such territories, really colonies, is wrong. Our founders who themselves rebelled against colonial rule, probably turned over in their grave when they learned of that.

    Its not the most horrible thing in the world. But it is certainly more outrageous than anything going on with DC.

  12. A.W. says:

    citizen

    And, btw, i am not defending the tories. I never questioned the rightfulness of running them out. indeed, my argument on this point depends on it being right despite its lack of democracy.

  13. Vince Treacy says:

    Brian, Jonathan Turley has covered this in his law review article and has no problem with the 23d Amendment. 76 Geo.Wash. L. Rev. 305, 372 2008).

  14. Brian Kalt says:

    I think that it is fair to say that Turley thinks that there are issues. He has some creative suggestions for dealing with them, but not flawless ones. And I agree with him that the best solution is amendment:

    “There are a few obvious solutions. One solution would be to repeal the Amendment, which is the most straight-forward and preferred. Another approach would be to leave the Amendment as constructively repealed. Most presidents vote in their home states. A federal law can bar residences in the new District of Columbia. A third and related approach would be to allow the Clause to remain dormant because it states that electors are to be appointed ‘as the Congress may direct.’ Congress can enact a law directing that no such electors may be chosen. The only concern is that a future majority could do mischief by directing an appointment when electoral votes are close.”

  15. Brian Kalt says:

    Come to think of it, the last one isn’t so bad. Congress could declare that the winner of the national popular vote gets the 3 EVs, and then include the few remaining residents of the rump D.C. in the national popular vote. And maybe folks in the territories too.

  16. Vince Treacy says:

    A.W., Well, at least I am glad I got your attention .

    “What, you mean the people of Maryland don’t want to introduce giants in the political realm like Marion Barry into their system? “ After giants like Spiro Agnew, the bribe-taking Governor and Vice President? Marion Barry is more than matched by Rowland of Connecticut, Spitzer, McGreevey, four out of the last Illinois Governors, and Blago. Why not drop the Barry card, since you hypocritically have no objections to any other jurisdiction.

    “many residents cannot afford to move.” “That’s absolutely laughably not true. I have actually looked for a home around here and I know. No one is trapped in D.C. in fact a lot of people pay a premium to live there.”

    Sorry, A.W., but it is true, despite whatever you say, and all 500,000 cannot move in any case, so that argument is still bogus. You have been looking in the wrong parts of town.

    Most voters in DC are African-Americans.

    “Thus the race card is played.” If the shoe fits, wear it. There are NO white majority jurisdictions that are denied rights in the same way. The “race card” retort is a favorite these days as a substitute for reason. The state ment that there is an African-American majority in DC is a statement of fact that you have, falsely, labeled the race card.

    “King George III could have told the colonists to move back to England to vote.” Right. crossing an ocean in 1776 is the same as going about 10 miles in 2009.” There is a difference but the principle is the same, and I am discussing principles here, the principle of the consent of the governed.

    “But reabsorption is in fact the fairest option.” But it cannot be done without Maryland’s consent, but you are unclear on this point because you seem to that say Maryland should reject retrocession because of Marion Barry.

    “Race relations is a perfect example of why Congress should have complete and unquestioned dominion over the capital.” After 100 years of slavery, and 100 years of segregation, you still argue for congressional control of race relations. Your entire discussion of Congress and race relations ignores the legal and historical fact that it was the Supreme Court, not Congress, that outlawed Jim Crow in Washington. The Supreme Court held in 1954 that Congress was barred from segregating the schools of the District by the equal protection aspect of the Due Process Clause of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954). Without the Supreme Court, and with Congress alone in charge, our capital probably would have been segregated far beyond 1954. You have it exactly backwards.

    “they did this to white people, too, so clearly racial animosity is not the culprit.” Sure, the oldest racist argument in the books. They deny the vote to some white people while they deny it to hundreds of thousands of black people, and then argue that they are color-blind.

    This is exactly the like the southerners who denied the vote to blacks before the Voting Rights Act. It does not matter how far someone has to move. They told black people to move if they wanted to vote, and you tell black people to move if they want to vote. You can wriggle all you want, but your differences in distance do not amount to a legal or moral distinction.

    “We have national security and foreign policy reasons for need national dominion there.” There are a dozen police forces and the armed forces of the United States to keep security there. Arlington is closer than most of the District, but has representation. Congress will keep its exclusive power over the Seat of Government.

    “Of course it is a departure from the ordinary principle of self-government and that is why it is such a small exception.” So you admit that it is a departure from the principle of self-government. Thank you. Denial of self-government to more than half a million people, however, is not a ”small” exception, except to some of those not affected by it.

    “there is virtually no attention to more outrageous examples of true colonialism, like Porto Rico.” Actually, I am in full agreement with you on this point. I agree that the territories were never intended to be permanent, and that McKinley was wrong to renege on independence after the Spanish-American war. I think that self-government and participation in the national government should be addressed for all unrepresented people under U.S. control. You want them represented, but not the District.

    “If discrimination against D.C. residents is racism as you seem to believe, then your infantilizing of them is what is truly insidious. It’s the “soft bigotry of lowered expectations.” This is a very patronizing and offensive discussion that ignores the fact that District residents expect no more and no less than any other U.S. citizens.

    The arguments you have made are great for the guys in the bars. But ALL the legal scholars who have addressed the issue here and elsewhere agree that the District Clause is an anomaly, and that its residents are entitled to representation. The disagreements are on the methods and means, whether by legislation of constitutional amendment.

    You disagree. You would deny them representation and continue the injustice for another 200 years. Fine. Just wanted to make it clear.

    And don’t argue that it is “voluntary.” There is no clause in the Constitution that allows or requires people to volunteer to lose their rights.

    “Yeah, nothing at all whiney about saying “poor me, I can’t live 10 miles down the road.”

    like the residents of all other democratic capitol cities on the planet.” No one who wants representation is whining. Your saying it does not make it so.

  17. Vince Treacy says:

    Brian, I have always thought that the 23d should be repealed if the District became a state or was retroceded.

    Would it be ratified? I think the states would ratify it in the case of retrocession, since it would not affect them adversely in any way, and would marginally increase their representation. Republican states would vote for it because it would eliminate 3 Democratic electoral votes. The Democratic states would support it because of their support for the District.So I do not know why Turley is so tentative on this.

    But your point, I think, is that the best course is repeal.

  18. Vince Treacy says:

    I am posting a column I wrote for the Northwest Current, a weekly paper circulated in D.C.

    I added in two links. One is to Jon Turley’s law review article, which has his fullest discussion of the issues. The other is to an important CRS Report on the constitutional issues:

    THE CURRENT, Wednesday, December 3, 2008, 11

    Voting rights bill may violate Constitution

    VIEWPOINT

    Vince Treacy

    The Current’s Nov. 19 editorial “It’s time for a vote” expresses support for the bill for a voting representative for the District of Columbia because it does not overreach and has a sense of bipartisanship.

    But the supporters themselves may be overreaching. Under the authority of the U.S. Constitution’s District of Columbia clause, the bill would give D.C. a single voting representative. The District clause is a supreme municipal power over capitol affairs, but it may not be a national power to alter the Congress.

    The bill falls far short of full representation, with no voice on treaties, cabinet officers and federal officials, Supreme Court justices, or the federal and D.C. judges who rule on every aspect of District life. Simple legislation in any future Congress could eliminate the representative. Given the drawbacks, it may be better to work patiently for statehood in the future.

    The scheme started out as a GOP idea to pre-empt any future demand for senators, while silencing the protests against taxation without representation. Rep. Tom Davis, R-Va., originated it, bolstered by an opinion from Viet Dinh, a former Bush Justice Department official. The Washington Post reported in November 2004 that a House Committee paid Dinh $25,000 for his opinion. Former Judge Ken Starr joined in.

    Rep. Davis was confident that Dinh had settled all constitutional questions, but Dinh met withering opposition from legal scholars, led by George Washington law professor Jonathan Turley. [http://docs.law.gwu.edu/stdg/gwlr/issues/pdf/76_2_Turley.pdf] The nonpartisan Congressional Research Service also questioned the constitutionality of the bill. [http://www.dcvote.org/pdfs/congress/JC052307Thomas.pdf]

    The researchers suggested a constitutional amendment to provide D.C. with a vote, with a matching vote for Utah, contingent on ratification. Senator John Warner, R-Va., offered a similar approach. But DC Vote rejected it, confident that the solicitor general would defend them in court. That hope was dashed for 2008, at least, when the Justice Department opposed the bill in the House and Senate judiciary committees. Experts who supported the bill would only say it was strong enough to go to the courts.

    Del. Representative Eleanor Holmes Norton, D-D.C., gave her support to the bill, but in the Senate, Republican support, except from Utah, evaporated, and cloture failed. With Rep. Davis and Sen. Warner now gone, only Utah and the D.C. Republican Party remain in support, leaving little bipartisanship.

    The bill is likely to pass in 2009, but the new members might not be seated. Under the Constitution, the House is the final judge of the qualifications of its members. But a court may grant a preliminary injunction if it finds: 1) opponents are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) the injunction is in the public interest. The opponents seem likely to succeed on the merits. Irreparable harm would ensue if the new representatives were found unconstitutional, since it would question the validity of the laws they voted for. Supporters would suffer little harm by waiting until appeals were resolved. The public interest in maintaining the integrity of Congress could far outweigh a short delay.

    And, in the end, the bill may be held unconstitutional.

    That would leave the three valid means for full representation for D.C.: (1) a constitutional amendment; (2) retrocession with the express consent of Maryland; or (3) statehood. The amendment process was tried in 1978, and failed. Retrocession has never won the support of the people of Maryland, and the necessary approval of the Maryland legislature is very unlikely ever to occur. Even though Professor Turley believes that Maryland could be forced to accept D.C., he cites no authority for it and does not advocate it.

    While statehood may be deferred at present, the bill should immediately establish a National Capitol Service Area, limited to parks, federal buildings, and installations under sole federal control. This is to make it clear that the D.C. Delegate or member represents people, not buildings.

    Finally, a blue ribbon commission should be set up to examine the problem of voting representation for the District and all the territories in the light of the founding principle of our nation, that governments derive “their just powers from the consent of the governed.”

    Vince Treacy is a Spring Valley resident.

  19. Vince Treacy says:

    Brian wrote: “If a law gave D.C. three senators, that would violate the “two senators per state” requirement too. But–my question goes–why wouldn’t the requirement also be violated by a law that gave D.C. zero senators, if D.C. is enough of a “state” to get a representative?”

    Brian, if the law affecting the composition of the national legislature gives D.C. a Representative but zero Senators, would it not also violate the equal protection aspect of the Due Process Clause of the Fifth Amendment?

  20. Brian Kalt says:

    Well, if there is an equal protection argument here, it would seem to be implicated by anything other than giving D.C. one representative and two senators.

    By that reasoning, though, D.C.’s best bet is to litigate against the status quo, rather than to replace it with a new one that is also unconstitutional.

  21. Vince Treacy says:

    Tried that. Didn’t work. An inequality that is written into the Constitution itself cannot constitute a violation of the equal protection clause. Adams v. Clinton, 90 F.Supp. 2d 35, 65-68 (D.D.C.)(three-judge court), aff’d, 531 U.S. 941 (2000).

  22. A.W. says:

    Vince,

    > Why not drop the Barry card, since you hypocritically have no objections to any other jurisdiction.

    First, my point in bringing him up was why Marylanders would not be interested in having Washington, D.C. as part of their state, and later why we shouldn’t be subject to the quirks of local politics.

    And bluntly, arguing that you are not as corrupt as Illinois or Louisiana is not your strongest card. This is our capital. If Louisiana is a corrupt, screw up of a state (and it is, as is a few others), that generally only affects the people of Louisiana. If Washington, D.C. is a corrupt, screw up of a jurisdiction, our entire nation is affected. That is why Barry was a more serious issue. I might also add that the real shame of the barry thing wasn’t that he did something wrong but that he was repeatedly sent back to government after having done it. that does happen in the states some of the time, but it is pretty rare and its an outrage almost every time it happens.

    > Sorry, A.W., but it is true, despite whatever you say, and all 500,000 cannot move in any case, so that argument is still bogus. You have been looking in the wrong parts of town.

    Lol, they don’t have poor people or poor areas in NOVA or in Southern Maryland. Oooookkkkkaaaay. Yes, they do. I know from firsthand experience.

    > There are NO white majority jurisdictions that are denied rights in the same way.

    Are presently? Nope. But as of 1865, there was one majority white jurisdiction I know of being treated this way. Wanna guess which one it was?

    The fact is if Washington, D.C. is a horrible oppression, it is one that at least the ancestors of the current residents choose voluntarily. Its hard to argue something is so awful when it is so easy to avoid it.

    > you have, falsely, labeled the race card.

    Of course the majority are “African American.” And paying any attention at all to that fact when there is no evidence that this is an issue of racism is what constitutes “playing the race card.”

    > There is a difference but the principle is the same

    No, the difference in fact does add up to a difference in principle. The principled difference is you cannot expect a person to pick up their whole lives find a new job in a new region, etc. But 10 miles down the street? Crud, I have moved further than that 2 times since I got here in 2002.

    > But it cannot be done without Maryland’s consent

    Well, not without a constitutional amendment, yes.

    > After 100 years of slavery, and 100 years of segregation, you still argue for congressional control of race relations.

    As did you, citing the voting rights act of 1965. And I might add the Civil Rights Act of 1964. Let’s face it, most of the progress in race relations have been federal, not local. And in fact segregation was banned in Washington, D.C. long before the Supreme Court bothered to say the rest of it should be banned outside of schools, or even before it was banned in the rest of the country. And likewise, the Lovings were able to marry in Washington, D.C. long before they could in their native Virginia. Its an undeniable historical fact that as a rule the national government has been better on racism than individual states. Which is not to say that individual states have never been better, but we are talking trends, not specific instances.

    > the Supreme Court, not Congress, that outlawed Jim Crow in Washington.

    Not true. Bolling only applied to schools, just as Brown did. Just as brown was not taken to apply to, say, buses, necessitating Dr. King’s boycott, among other actions, Bolling didn’t desegregate the District of Columbia. The idea that all civil rights progress came from the courts is a myth. Indeed, without legislative support, it is questionable that the courts would have had the gonads to carry through and ban all segregation themselves. Remember the memory of the switch in nine was still fresh in everyone’s memory at the time, not to mention korematsu v. United States.

    > Sure, the oldest racist argument in the books. They deny the vote to some white people while they deny it to hundreds of thousands of black people, and then argue that they are color-blind.

    Wow, so now you are calling me a racist. Ooooookay.

    So your theory was that the 1789 founders did this because they anticipated that by the 21st century this would screw a few black people out of the vote. Mmm-hmmm. Gee, what devious people. What could those African Americans possibly do to ESCAPE this horrible plan? Is there nothing they can do to GET AWAY from this disenfranchisement? Is there any way they can LEAVE IT behind? I am racking my brain.

    > This is exactly the like the southerners who denied the vote to blacks before the Voting Rights Act.

    Ah, so if any rule has a disproportionate impact, however unrelated it was to any intent to have that disproportionate impact, however justified the rule is on its own grounds and however much those persons’ own conduct caused that impact and their own decisions could eliminate it, then “you are just like them klansmen!”?

    Here’s a hint. Take a breath, bud. No one is conspiring to take away anyone’s vote. To believe anyone did so, you would have to believe someone drove black people into Washington, D.C. with that intent.

    > There are a dozen police forces and the armed forces of the United States to keep security there.

    You think security is merely a matter of shooting people? And you think foreign policy is, too?

    > Denial of self-government to more than half a million people, however, is not a ”small” exception,

    Sorry, a denial of self-government for about 10 miles square is small. It is indeed smaller than it was 200+ years ago, at least in comparison to the size of the United States as a whole

    > except to some of those not affected by it.

    And you can be unaffected by it too. Just get in your car and leave, presuming you are a Washington, D.C. resident. In fact, I can’t imagine why people want to live there. The cost of living is ridiculous, the taxes are sky high, the price of land and rent is awful. Gas prices are high, sales taxes are high, everything is expensive. Back when I worked in Washington, D.C. I made a point to avoid buying anything there unless it was a really good deal (like at Fielene’s Basement (sp?)). Living in NOVA, if anything, is easier on the pocketbook. The theory that Washington, D.C. is so supercheap that poor people are trapped there simply has no basis in reality.

    And don’t even get me started on the crime. They had to change their basketball team to the Wizards because the name “Bullets” was just too ironic. ‘Nuff said on that. Mind you, it is getting better, but it I am statistically much safer where I am, thank you very much.

    I don’t know why the demography shifted in Washington, D.C., but here’s the real reason why anyone (of any color) stays in Washington, D.C.: because it is their home and people are always slow to leave their home. But that means no one is trapped, except perhaps by sentimentality.

    > You want them represented, but not the District.

    Yes, because the district is different, for the same reason why I am okay with Louisiana being a state despite its chronic corruption, and ditto with Illinois. Because if Puerto Rico is a mess when it is part of the union, only the Puerto Ricans suffer. But if Washington, D.C. is a mess…

    Look for instance at the last few days. We had a major snow/icestorm that threatened to paralyze the region and to some extent, did. Handling bad weather is a matter of national security. And doing so can affect just about everything. For instance, a few years back hurricane Isabella tore through here, going through Virginia, around Washington, D.C. and into Maryland. Now, hurricanes tend to lose power over land, so you would expect that Virginia would be hit worse; but in fact a lot more people had power outages in Maryland, than Virginia. So I asked a friend knew just about everything there was to know about electricity if he had any idea why. He said it was simple. In Maryland, they are so tied up in regulation that if a power company needs to cut a branch that is too close to a powerline, it is very hard to do it. in Virginia, they just let them cut ‘em down.

    Now there is a perfect example of how a small thing, that would normally be a purely local matter, becomes a national security issue. And there is a million little things like that. Practically speaking, the goals of local control and national security and foreign policy cannot be reconciled. And so for 10 miles by 10 miles there is complete federal dominion. And if you don’t like it, it is easy to get out of it. it is an exception, and it appropriate to limit that exception to a small patch of land, but it is necessary. Most rules have principled exceptions, even that in favor of self-government.

    By the way, I will say one more thing. The democrats don’t want you to have equal representation either. That is why they passed a silly bill, when we all know it is almost certainly unconstitutional: so they could say they tried while being sure they won’t succeed. Anyone who cheers when the law is passed is a sucker. Its messed up, but its true.

  23. Brian Kalt says:

    That raises an interesting question. If the D.C. bill passes, it could be challenged from both sides. One side could challenge it as violating Article I, since D.C. can’t have a voting rep. The other side could challenge it as violating equal protection, because D.C. has a representative but no senators.

    In the latter case, ironically, the proponents’ own rhetoric about the lack of justification for treating D.C. residents as second-class citizens could be used against them. If proponents really want a rep and no senators, then a constitutional amendment is even more strongly indicated.

  24. Vince Treacy says:

    Brian wrote: “If proponents really want a rep and no senators, then a constitutional amendment is even more strongly indicated.”

    That course was suggested first in the Senate CRS testimony to Judiciary Committee, in the final paragraphs.

    http://www.dcvote.org/pdfs/congress/JC052307Thomas.pdf

    Although Sen. Warner offered to work on this approach, the proponents declined.

  25. Vince Treacy says:

    A.W., Your diatribe reflects badly on you. I have lived outside D.C. and may leave, but I would still support their rights to equal justice and equal protection under the laws. Other than that, I just disagree with you. The readers can judge for themselves. Bye.

  26. Vince Treacy says:

    Brian, I doubt if the bill, even if passed and signed, will ever get past the Article I hurdle. In the unlikely event that it did, then I think the equal protection argument would do it in, if it were raised by the opponents.

    The equal protection arguments against the bill have been shared with Viet Dinh and his associate, but they have never responded. Never.

  27. BD says:

    AW = the reason I left Virginia years ago.

  28. A.W. says:

    Vince

    > Your diatribe reflects badly on you.

    Translation, you have no answer to my logic, and you just realized your accusations of racism have harmed you. The ugly truth here is that you are used to cowing people with the race card into ignoring the basic facts on the ground: Washington, D.C. is not cheap, but expensive, and no one is trapped there. And it is especially ridiculous to use the race card on me without even knowing the color of my skin.

    > I have lived outside D.C. and may leave

    Thank you for proving my point. You voluntarily decided to live in Washington, D.C. and subject yourself to a situation that you claim is Jim Crowe all over again.

  29. Vince Treacy says:

    AW, no one is cowed by your “logic” and your points are still wrong.

    You think Congress should run roughshod over the District, but I disagree, since many of its problems are due to meddling by members of Congress. Let Congress have its own little fiefdom on the Mall, where no people live.

    You think ancestors of the current residents choose voluntarily to live in D.C., but that is a cruel distortion of the word voluntary, since history shows that many were fleeing slavery.

    You keep saying over and over that the problem can be solved by moving 10 miles down the street. But you never address the point that 500,000 people cannot move down that street, and so you ignore the problem completely. Your so-called solution is no solution at all.

    You claim Bolling and Brown applied to only schools, but you are wrong. Those cases reversed the separate-but-equal doctrine of Plessy for all purposes under the constitution, not just schools.

    Challenged to find a white-majority jurisdiction treated the same way, you come up with the District of Columbia about 150 years ago. Well, until 1862 many whites in the District were slaveowners, and slaveowners have never qualified as an oppressed minority under any conceivable theory. The slaveholders were the oppressors, not the oppressed. Not much of a counter-example.

    You have a problem with the disproportionate impact of rules. I just pointed out the long racist history of similar rules with disparate impacts. The literacy test purported to serve a public need and was racially neutral on its face, since it disqualified a few illiterate whites, but it was a tool of racists to deny the vote to blacks and was outlawed. The poll tax was racially neutral on its face, affecting some poor whites, but we amended the Constitution to abolish it because it had become a pretext for voter discrimination. The District Clause is used in the same manner today as a pretext for denial of the vote to blacks (and whites as well). My postings did not say you were a racist, since I just pointed out that a long string of arguments were used in the past by racists to deny the vote, and said “A.W.” was using the same arguments. There is nothing personal, since you are writing under a pseudonym, and a fictitious entity cannot be defamed.

    You seem to think a constitutional amendment is needed for retrocession. Well, if that is the case, the Commonwealth of Virginia has been unconstitutional since the 1840s. You think that for 10 miles by 10 miles there is complete federal dominion for national security and foreign policy. Where do you get this stuff? It is not a 10-mile square anymore. Arlington and Alexandria, including the Pentagon, have not been within the 10-mile square since the 1840s, and it has been fully consistent with security and foreign policy. Northern Virginia is far closer to the Capitol than many areas of D.C. If they don’t need 10 miles in Virginia, they don’t need 10 miles in D.C. Anyway, that view is obsolete, because the policy now is to move facilities far from the District out into the states. The granting of voting rights to D.C. is completely consistent with national security and foreign policy, and I am not letting your statements to the contrary go unchallenged.

    What do the Wizards have to do with any of this? Why do you put African Americans in quotation marks? You argue that “if all the other democratic capitals jumped off the Brooklyn bridge, would you do that too?” Have not heard that line of reasoning since Kindergarten. Why not hold your breath until you turn blue?

    And I have not proven your point, except in your own mind. American citizens do not, and should not, lose their rights by moving across a state line. There is nothing voluntary about the residence of many in the District. Of course, anyone is free to dispute that. Go ahead and tell young black and white people in the District that, unlike all other Americans, they have to leave their homes if they want to aspire to the Senate or the Presidency. I think legislation or an amendment should change this. Denial of the right to American citizens to vote for the national legislature is wrong, but you are free to advocate denial of the vote as long as you like.

    This reminds me of Orwell’s Animal Farm. He wrote that all animals are equal, but some are more equal than others. All people are equal, but some are more equal than others.

  30. A.W. says:

    Vince,

    > since history shows that many were fleeing slavery.

    Wait, I thought you said that congress IMPOSED slavery on Washington, D.C.

    But as a point of fact, as of 1865, white people overwhelmingly outnumbered African Americans in the District. So the demographic shift occurred after slavery ended.

    > But you never address the point that 500,000 people cannot move down that street.

    Why the hell not?

    > You claim Bolling and Brown applied to only schools, but you are wrong. Those cases reversed the separate-but-equal doctrine of Plessy for all purposes under the constitution, not just schools.

    That is not what it said in 1954. We now look on it as the real beginning of the end of segregation, but that is with the distortion of hindsight. There was plenty of room as of 1955, to pretend that they were not reaching as far as they finally did. Really, this is not even a controversial reading of the law.

    > Well, until 1862 many whites in the District were slaveowners, and slaveowners have never qualified as an oppressed minority under any conceivable theory.

    Exactly right and exactly my point. it was done to a group of people no one could call oppressed or discriminated against (well, maybe John C. Calhoun called them oppressed, but he was a major idiot). This wasn’t like a poll tax that hurt both “white trash” and black people, where you suspect that the white gentry were perfectly happy to screw both. This was done TO white gentry.

    > You have a problem with the disproportionate impact of rules.

    No, I have a problem with the notion that simply voluntary behavior creates a disproportionate impact that the rule causing that impeact somehow suddenly becomes out of bounds, however well justified the rule is. This same crap was pulled when states simply said, hey, before you vote, we want to make sure you are the actual voter and not an imposter. And funny, not even Justice Stevens sided with the bearers of the race card on that one.

    > I just pointed out the long racist history of similar rules with disparate impacts.

    Except its not a similar rule. A literacy test, for instance, was not evenly applied and was made for the express purpose of screwing over African Americans and “white trash.”

    > The District Clause is used in the same manner today as a pretext for denial of the vote to blacks (and whites as well).

    Ah, so everyone who opposes statehood or whatever for Washington, D.C. is really a racist. Good to know. Does that include any African Americans who feel that way, too?

    > My postings did not say you were a racist, since I just pointed out that a long string of arguments were used in the past by racists to deny the vote

    But the logic only works if a person is in fact doing it for racist reasons. The idea of making sure a person could read a ballot well enough to fill it out right is not an inherently bad idea; it is the fact it was a pretext for bigotry that makes it so.

    But contrary to what you think, it has never been the case that every rule that has a disparate impact was constitutionally barred, or even invidious. The requirement that doctors have medical degrees surely had disparate impacts at times, but no one would argue that untrained persons should be doctors. You act as if all you have to say is “a disproportionate number of black people are affected” and you win the argument automatically. You are wrong.

    > and a fictitious entity cannot be defamed.

    First, I am not going to sue you. But that is actually not the law. I am not a fictitious person. I just choose not to reveal my actual name. The fact that Marilyn Monroe was really Norma Jean didn’t mean it was suddenly okay to defame “Monroe.” And that is not a threat. I am just giving you advice for the next anonymous person you insult.

    > You seem to think a constitutional amendment is needed for retrocession.

    If Maryland won’t consent.

    > You think that for 10 miles by 10 miles there is complete federal dominion

    No. that is usually why I usually say “roughly 10 by 10” and the like. It is nearly a perfect diamond, but not quite.

    > and it has been fully consistent with security and foreign policy.

    I consider it less than ideal, but I guess the calculation was it was better to separate the pentagon from the white house than to keep it all in the district. There is a military soundness to that.

    > What do the Wizards have to do with any of this?

    Reread what I wrote over and over again until you understand what I am saying about it. Washington, D.C. was a seriously screwed up city back then, but has made great improvements under the last 2 mayors.

    > Why do you put African Americans in quotation marks?

    Because actually racial definitions are pretty vague and there is no real reality to race. But I admit I am being really inconsistent on the quotes. Its an off topic point, but you asked.

    > Have not heard that line of reasoning since Kindergarten.

    And yet the essentially truth of it hasn’t sunk in. just because everyone else is doing it doesn’t mean it is a good idea. You should listen to Dr. King’s sermon on “Rediscovering Lost Values” for illumination on the subject. Its brilliant.

    > And I have not proven your point, except in your own mind. American citizens do not, and should not, lose their rights by moving across a state line.

    They gain and lose rights by moving all the time. if you live in Virginia, your contracts will generally be respected. In Washington, D.C., only if they like them. In Virginia, if your property is not taken by the government, but merely “damaged” you are still entitled to compensation. Not so in other jurisdictions One state believes you cannot be killed by the state. Another says you can. And on and on.

    > There is nothing voluntary about the residence of many in the District.

    “I am going to keep repeating myself however laughably wrong I am, however much my own biography proves me wrong.”

    > Go ahead and tell young black and white people in the District that, unlike all other Americans, they have to leave their homes if they want to aspire to the Senate or the Presidency.

    Um, you don’t have to be resident of a state to be President. You only have to be a natural born citizen, a resident of the United States for 14 years and of age.

    > All people are equal, but some are more equal than others.

    By the way, you keep saying this is about equality, but in fact if Washington, D.C. was given such “equality” they would in fact have greater power over the central government just because so much of it is seated on their land.

    But equality of opportunity is the American way, not equality of outcome. Every child has an equal chance of growing up to become a fully equal member of the political community. All they have to do is… sing it with me now… “put one foot in front of the other, and soon you are walking out… of the district.” Heh.

  31. Vince Treacy says:

    Have the last word, AW. Thank you for a lively exchange. Haven’t had so much fun in a while.

    I post over at Jon Turley’s blog (“Res ipsa loquitor” http://jonathanturley.org/

    VOTED THE #1 LEGAL THEORY AND LAW PROFESSOR BLOG OF THE TOP 100 LEGAL BLOGS BY THE ABA JOURNAL

  32. A.W. says:

    Vince

    Lol, the chest-beating there is hilariously transparent.