Get Ready for a Senator from Washington D.C.

By AndrewHyman Posted in Comments (27) / Email this page » / Leave a comment »

There will be a hearing on May 15 in the Senate to consider legislation that would give Washington D.C. a vote in the House of Representatives. This unconstitutional legislation has already passed in the House. If it becomes law, it won't be long before D.C. also gets one or two Senators as well. Wikipedia has background info here. I wrote a letter to the Senate committee for their 15 May hearing, and it's below the fold.

Senator Joseph Lieberman, Chairman
Senator Susan Collins, Ranking Member
Committee on Homeland Security and Governmental Affairs
340 Dirksen Senate Office Building
Washington, D.C. 20510

Re: Letter for the Record, 15 May 2007 Hearing on “Equal Representation in
Congress: Providing Voting Rights to the District of Columbia,” S1257

Dear Chairman Lieberman and Ranking Member Collins:

This is a brief letter that I would very much appreciate having entered in the hearing record for your 15 May 2007 hearing on “Equal Representation in Congress: Providing Voting Rights to the District of Columbia.” I am writing only as a concerned citizen and legal scholar who has studied these issues in depth, and not on behalf of my law firm.

The proposed legislation is very clearly unconstitutional, and I support achieving equivalent goals by alternative means, such as by constitutional amendment or by legislation to form a smaller federal district. I will first briefly explain why the primary objection to a smaller federal district is apparently not well-founded.

Congress could form a smaller federal district, and then either retrocede the remaining land to Maryland, or grant statehood for the remaining land. The primary objection to forming a smaller federal district seems to be that residents of the remaining “rump” federal district would each have tremendous voting power under the Twenty-Third Amendment, in presidential elections.[1] That objection seems to me to be incorrect. The Twenty-Third Amendment says that the electors from the federal district shall be appointed “in such manner as the Congress may direct.” For example, the Twenty-Third Amendment would allow Congress to choose the electors from the District based upon the national popular vote (which of course would include the votes of citizens of the federal district). Thus, the citizens of the smaller federal district would not have inordinate voting power in federal elections.

Regarding the unconstitutionality of SB1257, I fully concur with the conclusion of the Congressional Research Service: "it would appear likely that the Congress does not have authority to grant voting representation in the House of Representatives to the District." [2] I will not repeat here the arguments made by the CRS, and will instead briefly add a few remarks.

It is true that, in some respects, Congress has treated the District of Columbia like a state for many decades. However, that did not involve the particular constitutional language at issue here. Your Committee may not be aware that the framers of the Constitution were emphatic about this particular constitutional language. For example, on 6 October 1787, one of the framers said the following in a public speech at Independence Hall in Philadelphia:

“The House of Representatives is to be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature; unless, therefore, there is a State Legislature, that qualification cannot be ascertained, and the popular branch of the federal constitution must be extinct.”[3]

It is thus unmistakably clear that the framers viewed the second sentence of the Constitution (after the Preamble) as an exclusive catalogue of the membership of the House of Representatives, which after all is just what the second sentence of the Constitution says. This is very different from Article III, Section 2 of the Constitution (regarding jurisdiction of the federal courts), which was held to be non-exclusive by a plurality of the U.S. Supreme Court in 1949.[4]

Sincerely,

Andrew T. Hyman

[1] See, e.g., Matthew Franck, “Hammering to Fit,” National Review (September 18, 2006).

[2] Kenneth Thomas, “CRS Report for Congress: The Constitutionality of Awarding the delegate for the District of Columbia a Vote in the House of Representatives of the Committee of the Whole” (January 24, 2007).

[3] Speech of James Wilson (October 6, 1787), reprinted in Ralph Ketcham, The Anti-Federalist Papers and the Constitutional Convention Debates (2003).

[4] National Mutual Insurance v. Tidewater, 337 U.S. 582 (1949): "We ... decline to overrule the opinion of Chief Justice Marshall, and we hold that the District of Columbia is not a state within Article III of the Constitution.” Likewise, the Supreme Court has affirmed that the District is not a state within the meaning of Article I. Adams v. Clinton, 90 F. Supp. 2d 35 (2000), aff’d 531 U.S. 941 (2000).

As I understand it, conservative Republicans in the Senate would filibuster any attempt to give D.C. representation in Congress. Even if they didn't, Bush has promised to veto the measure as unconstitutional. The numbers aren't there to over-ride the veto. For this plan to work, the Dems would need to control both the White House and both houses of Congress, so I don't think this legislation will be approved in the next two years. But to be forward thinking, it does mean that we need to elect a Republican president and congress in 2008.

Reply To ThisUser Info#1 — Tue, 2007-05-08 18:11
also by helveticus

did anyone notice who was sitting next to Pres Bush and Queen Elizabeth II last night? None other than John Roberts. Somehow I don't think the President is seating him next to the Queen if he isn't pretty sure of where he stands.

Reply To ThisUser Info#2 — Tue, 2007-05-08 18:29

Article I, Section 3 begins "The Senate of the United States shall be composed of two Senators from each State ... " The last I heard, and for the past 200 or so years, the District of Columbia has not been and is not a "State". Therefore, any legislation to give D.C. Senators would be plainly unconstitutional on its face. And a constitutional amendment will never get three-quarters approval by the states for ratification. So it won't happen, unless ...

Hillary, Edwards or some other leftist is elected in 2008 and manages to appoint a working majority of lawless judicial activists (a la Ginsberg and Stevens, only more so) to the Supreme Court. The plain text of the Constitution and legislation means nothing to these so-called jurists, and they are quite capable of rewriting the Constitution to suit their social-engineeering whims and to further their leftist political agenda. They will simply redefine the meaning of "State" to suit their purposes. It would happen very soon after they get a working majority on the Court.

Does anyone still not think that the 2008 election is crucial to the future of our country as a Republic under Law?

Reply To ThisUser Info#3 — Tue, 2007-05-08 19:03

Senator Hatch is cosponsoring this bogus legislation in the Senate. Ken Starr and Viet Dinh have written legal briefs supporting it. Jack Kemp says if the GOP rejects this bogus legislation then the GOP will be a permanent minority party forever. Etc. etc. etc.

Hatch has promised to urge the President not to veto it.

Reply To ThisUser Info#4 — Tue, 2007-05-08 19:22
Remember, Sen. Hatch is by Thomas Alan

Remember, Sen. Hatch is representing Utah. They think they need another seat in the House. Though I'm sympathetic to them, it's only going to be two more election cycles until the next census and there's no excuse for ripping up the Constitution over this.

Reply To ThisUser Info#5 — Tue, 2007-05-08 20:28

http://www.senate.gov/legislative/LIS/executive_calendar/xcalv.pdf

After the vote for S.1082, the Senate will debate on Livingston for three hours and then vote on her. She has truly been quickly fast-tracked.

Reply To ThisUser Info#6 — Tue, 2007-05-08 20:33

Some comments on these GOP "D.C.-ized stalwarts"

1. Thank goodness Starr wasn't nominated in 1990. Souter may have turned out badly, a disaster in fact, but at least I have the sense that he has some inner integrity and is true to his own beliefs, misguided as they may be. Starr has shown himself to be a professional Washington Charlaton, as he has proved over and over again. If he'd been confirmed in 1990, I doubt he'd have turned out well--he seems to have no center.

2. If this is true, Dinh has provisionally disqualified himself as a future S.C. Justice. I would like to hear some explanation.

3. Hatch is going (gone?) over the top into D.C. La La Land. Is he going senile or what?

4. Kemp is a failed has-been from the historical trash bin. Maybe he'll be doing Viagra commercials next, like his ex running-mate. I'd almost forgotten how awful 1996 was.

Bottom Line: It's still Unconstitutional -- if that still matters.

Reply To ThisUser Info#7 — Tue, 2007-05-08 20:37

Good good good. Will be putting some champagne on ice tomorrow. But why is this going SO fast, faster even than DJ's on the Executive Calendar. Must be a deal on some piece of legislation.

By the way, did anyone see Leahy on C-Span today during the 15 minute "debate" on Kapala? He was doing his approximately 116th take on how he and Senate Dems are so much better on judicial confirmations than majority Senate Republicans were to Clinton's nominees in 1996. 1996??? How does 1996 (election year) compare at all to 2007? I could almost recite his speech by heart. It looked like even the Senate pages were dozing off during this ancient history lesson. We'll probably hear the same thing again tomorrow--small price to pay for Livingston.

Reply To ThisUser Info#8 — Tue, 2007-05-08 21:01
I'd have to think by Dienekes

even the liberal justices would hold this to be unconstitutional. I'd be shocked if it weren't unanimous or nearly so.

Reply To ThisUser Info#9 — Tue, 2007-05-08 21:28
helveticus by Dienekes

I wonder if all the justices were invited, or just the Chief?

I got a kick out of reading the guest list for the dinner. Condi's guest was Gene Washington (an NFL exec). so far as I recall there were just 5 members of congress: Pelosi, Boehner, McConnell, Lott, and Dreier (as the escort of a former ambassador or something).

Reply To ThisUser Info#10 — Tue, 2007-05-08 21:33
Outsider by BoBo

I think that Livingston and Southwick may be confirmed because the Dems are desperate to get an "amnesty" immigration bill passed with enough Republican support to look bipartisan. Livingston and Southwick are a lure. Will a vote for Southwick draw in Lott and Cochran?

Reply To ThisUser Info#11 — Tue, 2007-05-08 22:00

...and Dreier (as the escort of a former ambassador or something).

Reply To ThisUser Info#12 — Tue, 2007-05-08 22:18

I think he's repeated the 1996 line about 200 times or so over the past 7 years. He's also constantly repeated the total number of confirmations line.

That said, in a couple weeks, we might have 4 appeals confirmations in 2007. Which is kind of sad, as it took until May 25th to get the 1st confirmation of 2005.

I think this is a good sign for 2 May confirmations. Why expedite Livingston unless you're trying to free the rest of the month up for something/someone else?

Reply To ThisUser Info#13 — Tue, 2007-05-08 22:38
bk, how so? by Dienekes

the other 4 were invited in their capacity as members of Congress (possibly excepting McConnell as the husband of Sec. Chao, though he was listed first, so I think it was still in his role as Sen. Minority Leader; likewise Pelosi as Speaker, Boehner as Minority Leader, and Lott as Minority Whip (I assume, though that seems less obvious a post due invitation given how few there were). I think Reid may have been invited as well, but did not attend, though I could be wrong). Dreier was there accompanying an ambassador from the Reagan years (she may be a widow, and almost certainly knows the congressman), not, as far as I can tell, (just) because he serves in Congress.

Reply To ThisUser Info#14 — Tue, 2007-05-08 23:08
Dienekes by BoBo

You are right. Reid was invited and declined, supposedly because he feels awkward at fancy parties. While I am not sure about Lott, Pelosi, Boehner and McConnell were all invited specifically due to their congressional positions. Dreier was not specifically invited. He came as the escort of the widow of Walter Annenberg, a former Republican ambassador to Great Britain, who in the past has entertained the queen many times in London.

Reply To ThisUser Info#15 — Tue, 2007-05-08 23:21
i think by helveticus

bk's comment was in reference to rumors of Dreier's proclivities and the use of the word "escort". it also isn't just that Roberts was invited, but that he was seated at Bush's table and NEXT to the Queen. It was W, QE2, Roberts. I just think that shows W knows what he has in Roberts.

Reply To ThisUser Info#16 — Tue, 2007-05-08 23:53
Re Bobo #11 by Outsider

Amnesty! That's what I was afraid of when I wrote "must be a deal on some piece of legislation" in my #8. It had to be something truly awful to make the Circuit nominees move so fast. If it's really as utterly horrible as an amnesty immigration bill, we'd better be getting at least Keisler and a few others additional in return for selling out the country.

Reply To ThisUser Info#17 — Wed, 2007-05-09 02:42

It was perfectly proper usage, but calling Dreier an escort did cause an eyebrow to raise for me.

Reply To ThisUser Info#18 — Wed, 2007-05-09 08:30
Maryland by Kenneth

Why isn't anybody in Congress pushing the alternative solution that the residential areas of D.C. should be given to Maryland?

Reply To ThisUser Info#19 — Wed, 2007-05-09 09:18
Kenneth by BoBo

The real problem with ceding the Distric of Columbia back to Maryland has to do with jurisdiction. What if the Maryland state government or the government of the city of Washington, D.C. try to actively thwart what the president or Congress wants. Neither the president nor the Congress could constitutionally veto those plans. The capital city of any country represents the whole country. There shouldn't be laws in Washington, D.C. that conflict with the federal branches of government and their agencies that are headquartered there.

Reply To ThisUser Info#20 — Wed, 2007-05-09 09:39
jurisdiction by Kenneth

As I understand the Maryland proposal (maybe I don't), the federal government would completely relinquish jurisdiction over the residential areas of D.C. to Maryland. The city of Washington, Maryland would consist of residential areas, cease to be considered the capital of the US, and should perhaps be renamed. And it would be under Maryland's jurisdiction, just like any other Maryland city. Washington, D.C., then, would consist only of government buildings (I suppose) and would still be the capital district (though no longer a city) of the US.

Reply To ThisUser Info#21 — Wed, 2007-05-09 10:53
Jack Kemp is a naive fool by Americaforever

if he thinks the GOP can win much support from black voters by supporting Senators for DC. Senators from DC will be Democrat, or perhaps explicitly Socialist Party, every single time, without fail and by overwhelming margins. This is suicide for the GOP and, more importantly, for the country.

Reply To ThisUser Info#22 — Wed, 2007-05-09 11:22

In Presidential elections, it will help Republicans a little.

DC currently has 3 electoral votes since 1961. They've gone to the Democrat in every one of the 11 presidential elections since.

Adding DC's population to Maryland would give Maryland at most 1 additional EV. Net result: 2 fewer EVs for the Dems in every presidential election.

----------

Definite downside: it becomes impossible for a Republican to win statewide office in MD. But, post-Ehrlich, it almost is already.

Possible downside: MD could gain a congressional seat. But even that's not certain. In July 2005, the population of DC was only 550,000, and falling. The average congressional district has about 650,000 people.

Reply To ThisUser Info#23 — Wed, 2007-05-09 13:09

does that (Democratic) Senator immediately "own" all the seats on the DC Circuit?

I know that sounds stupid, but I wouldn't put anything past our friends in the Democratic Party. How many of the 12 seats would they control?

Reply To ThisUser Info#24 — Wed, 2007-05-09 20:25
Hatch by BillM

I live in Utah and I simply cannot fathom the madness that has consumed some people here on this issue, esp. Hatch (tho he hasn't really been "here" in decades, but that's another post). But, Orrin does love the cameras and appearing all statesmanlike & humanitarian, so there ya go.

Yeah, we got screwed, both by the Census Bureau & SCOTUS, but so what? 2010's just around the corner.

Fortunately, a number of people have seen thru this nonsense, and I agree that it seems unimaginable that Bush won't veto it, or that there are 5 votes to uphold this law on SCOTUS.

Reply To ThisUser Info#25 — Wed, 2007-05-09 20:28

The moderate Bob Dole picked Kemp to be his Vice Presidential candidate in 1996. He was suppose to be the "conservative" that brought "balance" to the ticket.

Dick Cheney was another "conservative" brought in to bring "balance" to the ticket. His only variation from the policies of George W Bush was to advocate homosexual marriage.
Dick Cheney and Donald Rumsfeld were Gerald Ford's two closest political advisors. They talked Gerald Ford out of selecting Ronald Reagan as his running mate.

When moderates pick conservative leaders for conservatives, the result is conservatives being lead by people less conservative than they are. The Howard Dean's of the world lead the Democratic even further to the left. The Jack Kemps of the world pull the Republican party further to the left.
Everybody is pulled to the left by their leaders.

Is it any wonder why conservative just always seem to lose?

The country was has a continuous leftward drift precisely because both the liberal and conservative movements have leaders that are far to the left of their respective memberships. The country will only turn to the right when rank-and-file conservatives refuse to allow moderates to pick their leaders.

Reply To ThisUser Info#26 — Thu, 2007-05-10 01:21

I have not been a Mike Pence fan since I learned he was whole-heartedly willing to throw our country under the bus (and on the way to becoming a Third World Country) with his amnesty proposal. But as bad as that was, his being in favor giving Washington D.C. a vote in the House without a constitutional amendment is disgusting. Pence doesn't give a DAMN about the text of the Constitution. He's a whole-hearted liberal. I try not to cherry-pick a candidate's specific stances on the issues, though in this case it's necessary. If Pence doesn't give a damn about the text of the Constitution (which it is clear he does not) he is violating his the oath he took to defend the Constitution. If the text of the Constitution means nothing to Mike Pence, does the Constitution itself mean anything to Mike Pence? That is a sincere question. If Mike Pence does not want to defend the Constitution (and by that I mean the text), he should resign because he is violating his oath. Any Republican who supports this bill is NOT a conservative. If Pence thinks our Founders made a mistake by not giving the District of Columbia a vote in the House of Representatives (and Senate?), then he should be pushing a Constitutional Amendment. If a Constitutional Amendment is ratified, in accordance with Article V of the Constitution, then D.C. should be given a vote in the House of Representatives. The Twenty-third Amendment was ratified to give D.C. presidetial electors; a constitutional amendment must be ratified in accordance with Article V to give Washington D.C. a vote in the House. Anything else would be unconstitutional. I will say it again, any Republican who supports this bill is NOT a conservative, but rather a liberal who does not give a damn about the Constitution.

Reply To ThisUser Info#27 — Thu, 2007-05-10 16:42


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