Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

Who are we? We're a married couple who has a passion for politics and current events. That's what this site is about. If you read us, you know what we stand for.

Friday, February 27, 2009

Addressing the unconstitutional move by Congress

A few of you might be scratching your heads and wondering what the Hell I'm talking about. (Of course, a few more might be shaking your heads and asking "Now what the Hell did these idiots do now?") Well, to put it mildly, they have voted to give Washington, DC voting rights within the House which is beyond the idea of unconstitutionality. The final Senate vote went down 61-37 with six Republicans voting in favor of it -- Specter, Collins, Snowe, Voinovich, Lugar, and Hatch. (Baucus and Byrd were the two Democrats to vote no on the initiative.)

Folks, the Constitution is explicit about who has control over the District. Congress has the power to exercise exclusive legislation in all cases concerning the federal District. The District was composed of two parcels of land from both Virginia and Maryland. In 1846 the Virginia portion was retroceded back to the state, and while no challenge has arisen from this move, no justice on the Supreme Court has stated one way or another if the action of retrocession was constitutional. In 2004 that idea was tried by Congress, but ended up failing in committee, but had it passed, the remaining portion of land -- the one taken from Maryland -- would have been returned to the state. The problem with this idea is that Maryland doesn't want the land back. That and in 1964 Attorney General Robert F. Kennedy deemed it not just impractical, but also unconstitutional (don't know about the latter as RFK wasn't a sitting Justice, so his opinion on the constitutionality is moot, at best).

In 2000 a series of cases wound their way through the federal courts from DC residents claiming that they have been denied their voting rights in Congress by unconstitutional means, and that there was no need for a constitutional amendment to alleviate their grievance. The courts disagreed with them. (Adams v. Clinton, 2000)

The only legally acceptable recourse the District has, and that Congress could pass, is an amendment that either A) Gives DC statehood; B) Gives them a seat in the House, complete with voting rights; C) Enacts Maryland retrocession, which would solve the representation factor. All three are viable. In 1977 a proposed amendment was passed by Congress, but failed to get the three-quarters majority of the states in the allotted seven year time frame. That amendment would have given the District voting representation in Congress "as if it were a state."

But the end run pulled by Congress yesterday was simply unacceptable. Congress isn't some imperial parliament. They are constrained by the very document they swore to uphold, protect, and defend. There wasn't a lot of that going on yesterday in either House. The editors at National Review put it succinctly yesterday:

An option to grant Washingtonians a voice in the House, without requiring the high demands of a constitutional amendment, already exists: retrocession. Just as Virginia absorbed a chunk of the District in 1846, Maryland could take in large sections of it now. Let Maryland’s political establishment, including Democratic governor Martin O’Malley and House Majority Leader Steny Hoyer, explain why this is not acceptable.

The District’s promoters aren’t talking about retrocession. Instead, they’re trying to get around significant constitutional obstacles by ignoring them. Specifically, their proposal would increase the size of the House of Representatives by two members, from 435 to 437. One of the new seats would be awarded to the District on a permanent basis. The other would go to the state that’s next in line to receive one, based upon existing formulas of apportionment. At the moment, this happens to be Utah. Its House delegation would expand by one member — at least until 2012, when the results of the next Census take effect.

Some call this a praiseworthy example of bipartisan compromise. Whereas Washington certainly would elect a Democrat, Utah presumably would elect a Republican because it is one of the most GOP-friendly states in the Union (even though one of its three current representatives is a Democrat). What would happen in 2012 and beyond, however, is an open question, except for the fact that D.C. would retain its seat.

Such political scale-tipping should have nothing to do with it, however. The Constitution is explicit: It forbids the District, a non-state, from enjoying the full benefits of congressional membership. Senators and representatives who have taken an oath to uphold the Constitution should do their duty and vote down this unconstitutional ruse.

This foolish decision by the Congress must be overturned by the Supreme Court. No law enacted that is contrary to the Constitution is valid. The constitution is the highest law of the land, and it states that the District doesn't meet the requisites to have this representation. We would suggest to all of the States to begin filing suit in federal court, and march this issue straight into the Supreme Court's hall. There it is almost assured they will strike down Congress's unconstitutional end-run.

Publius II


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