Archive for the 'Constitution' Category

Let’s just get this bit out of the way. I am not a lawyer; I am just a person who has the privilege of being a United States citizen, with all the rights and obligations that come with that honor. It is my duty as a citizen to defend the Constitution. Someone whose opinion I value disagrees with me. I am rising to the challenge.

There is an argument afoot, as to the legality of a legislative vs. amendment solution to representation for the citizens of the District of Columbia. I believe that both a legislative and an amendment path could lead to righting a 200-year-old wrong; my friend believes that there is only an amendment path. That is what this post is about, evidencing the legal legislative path to representation in Congress for DC residents.

First some history. Back when the founding fathers were writing the Constitution in June of 1783, there was a riot outside of the statehouse in Philadelphia, (which was the capitol of the US, at the time). There were some unpaid revolutionary troops, who were demanding pay from the forming federal government, the forming fathers asked Pennsylvania to provide some protection, and Pennsylvania refused. The Congress decided to move to Princeton then to Trenton, New Jersey; to Annapolis, Maryland; and finally, New York City, to settle the Constitution in a more peaceful environment(s).

From this situation, the idea of a “District”, outside of the influence and dependence on a singular state was born. The Framers constructed an idea of a District no more than 10 miles on each side, to hold the nation’s capitol. Alexander Hamilton raised an amendment to the Constitution, in his state, providing that when the federal district reached significant population (reached in 1850), “provision shall be made by Congress for having a District representation in that body”. The Constitution was passed without such amendment in 1789, when everyone lived in a state.

So the idea of the District was created. Virginia and Maryland succeeded lands to create the District, and in 1791, the site was chosen by George Washington. While the District was under construction, the residents were allowed to vote in their former state’s elections (north of the Potomac in Maryland, and south of the Potomac in Virginia). December 1, 1800, the federal government moved to Washington D.C. from Philadelphia. It wasn’t until 1801, when Congress assumed control over the District, that the former residents of Virginia and Maryland were denied the right to vote in elections.

July 9, 1846, Congress passed a law returning Alexandria County and Alexandria to the State of Virginia. After decades of DC resident’s complaints (petitioning as early as 1803), the lands of the District, south of the Potomac, were returned by recession to Virginia, and the residents living in that area had representation on the hill again. You will note that the right to representation in Congress was a primary reason that the District is not 10 miles square today. While I might I don’t agree with their reasoning for wanting the vote (slavery), the fact remains that the citizens demanded representation, and Congress gave the land back, so that they could have representation. The yellow bit is Virginia, and the gray/white part is formerly Maryland and present day Washington, D.C.

Image from Mental Floss.

My friend claims that there is nothing in the Consititution granting the power to Congress to pass a law granting a voting member to the District of Columbia in the House of Representatives. The relevant portion of the Constitution is, Article 1, Section 8, Clause 17, (hereinafter “The District Clause”):

To exercise exclusive legislation all cases, whatsoever, over such district (not exceeding ten miles square) as may, by Cession of particular states, and the acceptance of Congress, become the seat of the government of the United States . . .” (Emphasis mine.)

And he would probably cite Article 1, Section 2, Clause 1:

The House of Representatives shall be composed of members chosen every second year by the people of the several States . . . “

And Article 1, Section 3, Clause 1 (as amended by the 17th Amendment):

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof. . . “

Ahh, there’s the rub. Fortunately, I have several instances where Congress has treated Washington, D.C. as a state, by using the District Clause.

Congress has let Citizens Vote for Congress Even When They Aren’t State Residents: While the language of the Constitution literally requires that House members be elected “by the People of the Several states,” Congress has not always applied this language so literally:

* After Virginia and Maryland gave up lands in 1790 that later became the District of Columbia, Congress let residents keep voting in federal elections in those original states through 1800 - even though, legally, they were no longer residents [of a state].

* The Uniformed and Overseas Citizens Absentee Voting Act allows U.S. Citizens living abroad to vote in Congressional elections in their last state of residence - even if the no longer are citizens there, pay any taxes there, or have any intent to return.

. . .

* Article III provides that courts may hear cases “between citizens of different states” (diversity jurisdiction). The Supreme Court initially ruled that under this language, D.C. residents could not sue residents of other states. But in 1940, Congress began treating D.C. as a state for this purpose - a law upheld in D.C. v. Tidewater Transfer Co. (1949).

* The Constitution allows Congress to regulate commerce “among the several states,” which, literally, would exclude D.C. But Congress’ authority to threat D.C. as a “state” for Commerce Clause purposes was upheld in Stoughtenburg v. Hennick (1889).

* Similarly, a U.S. Court of Appeals recently treated D.C. as a “state” for purposed of the Second Amendment, in Parker v. District of Columbia (D.C. Cir. 2007).

from the Leadership Conference on Civil Rights, Letter with H.R. 1905 Fact Sheet Including Constitutionality Issues, April 18, 2007 (PDF 93 kb)

* “For instance, the Supreme Court consistently has upheld Congress’ right to treat the District as a state in decisions on federal taxation, regulation of interstate commerce, the right to trial by jury, prohibition and the right to sue citizens of the states in federal courts . . .”

from the CQ Researcher, DC Voting Rights: Should Washington Citizens Have a Vote in Congress? April 11, 2008 (PDF 561 kb)

“Moreover, the United States is the only country in the world that denies the citizens of its capital representation in its national legislature, according to the Parliamentary Assembly of the Organization for Security and Co-operation in Europe (OSCE).” id.

Ilir Zherka, executive director of the voting-rights advocacy group DC Vote, points out that for decades the U.S. departments of State and Justice have helped other countries write their constitutions “In not one of them has the U.S. proposed to disenfranchise the people of the capital.”, id.

Let’s refer back to the whole “Taxation without Representation” issue. I think it is extremely important here. The Sixteenth Amendment (passed in 1909, ratified in 1913):

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

The D.C. is not a State, yet the citizens pay Federal Income Taxes. If my friend’s contention is true, that Congress cannot pass a law giving representation to its citizen’s, because it is unconstitutional based on the frequent use of “the several states” throughout the Constitution; then the fact that D.C. citizens pay taxes on their incomes would be unconstitutional as well.

If my friend’s contention held true, that D.C. cannot be treated as a state under the Constitution, and the powers granted to Congress to provide legislation “exercise[ing] exclusive legislation all cases, whatsoever, over such district“; then the Congress would have done a lot of illegal things over the years.

I posit the Constitution conflicts with itself. It is not a perfect document. All contingencies could not have been foretold. Therefore, the founding fathers put in ways to amend it (thank you Ben Franklin), and ways for Congress to provide for the citizen’s rights, who happened to live in a District, instead of a State.

So, I used to be a member of the ACLU; I was even the President of the Kern County Chapter for a while. However, I left the organization years ago; mostly due to the tight grip they keep on their local chapters. Since I left the group, I have kept tabs on what they are doing, and I have noticed that the ACLU increasingly gets involved in the most outlandish cases. While I still respect the ideological goal to defend the Constitution, I am at a loss to justify most of their recent actions, especially this one: The ACLU is coming to the defense of Senator Larry Craig.

ST. PAUL, Minnesota - In a legal effort to help a U.S. senator, the American Civil Liberties Union is arguing that people who have sex in public bathrooms have an expectation of privacy.

The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom, the ACLU wrote in its brief.

Inasmuch as I get the ACLU’s point, that Craig’s alleged end-goal (sex) is not illegal, I disagree entirely with the premise that people looking to have sex in public have a reasonable expectation to privacy.

First off, public bathrooms are notoriously lacking in privacy. Anyone who thought about doing anything in there, legal or not, should think twice about how noticeable their actions are, what with the foot traffic and waiting lines.

Second, if the ACLU is going to argue the position of privacy, then there has to be a respect for the privacy of others engaged in the same activity. Craig is alleged to have solicited sex from a person in an adjoining stall, meaning that he was infringing on the expectation of privacy of that bathroom-goer. It is the same logic used to justify when ‘rights’ have gone too far: you’re rights cannot infringe upon the rights of another; that would create a problematic logic loop.

All of this isn’t to say that I think Craig should hit the slammer for this incident, I just think the ACLU is grossly out of lines in justifying this as a Constitutional case about privacy.

Over in the comments at Rebels Are We, a little conversation started up between myself and Mike of The Last Best Place.  Essentially, this conversation centered around Mike’s belief that we should return the ‘abortion decision’ to the states via the elimination of the Roe vs Wade precedent.

If the people of Montana are in favor of abortion, put it to a vote. The same goes in Alabama and elsewhere. Will it ultimately create a a patchwork of laws nationwide? Sure it will, but we forget that we’re already a patchwork of 50 individual states , 13 of which existed essentially as sovereign governments until 1787. If we’ve already agreed upon the notion that Montana values are not New York or California or Mississippi values why pretend otherwise?

I disagreed, saying that passing the buck 50 times doesn’t move us any closer to reaching agreement or solving any of the problems associated with abortions.  I did, and still do, contend that in places where abortion has been made illegal, there has been no noticeable change in the number of abortions performed.  However, this isn’t quite the point I want to bring up here.  Mike made an interesting claim when he said “Sure it will, but we forget that we’re already a patchwork of 50 individual states”, because Mike Huckabee touched upon that exact subject when he spoke of abortion recently:

“It’s the logic of the Civil War,” Huckabee said Sunday, comparing abortion rights to slavery. “If morality is the point here, and if it’s right or wrong, not just a political question, then you can’t have 50 different versions of what’s right and what’s wrong.”

“For those of us for whom this is a moral question, you can’t simply have 50 different versions of what’s right,” he said in an interview on “Fox News Sunday.”

While I don’t agree with Huckabee’s specific position on abortion, I do agree that taking a controversial issue and splitting into 50 controversial decisions isn’t helpful, no matter how local those decisions might be.  Especially because most pro-choice advocates believe this is a Constitutional issue (whether or not you agree with their interpretation), it doesn’t just work to hand it off to the states.  However, I do at least understand the desire to allow the appeal of approaching these issues from a federalist standpoint; letting smaller units make their own decisions is more likely to make people happy.

Which is why I wanted to bring the question here.  Despite the appeal, and possible utilitarian nature, of shifting decisions such as abortion to the individual states, does it just create more problems allowing 50 possible interpretations and stances of moral issues such as this?

That’s right, September 17th, the day we celebrate one of the finest documents ever put into printed word. To commemorate the event, I want to invoke the words of Texas Congresswoman Barbara Jordan, which are more fitting today than they were when she spoke them in 1974.

My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.

Coincidentally, Jordan was speaking of Nixon’s impeachment.  But I don’t bring this up to advocate for the impeachment of President Bush, but to remind us all that our obligation as Americans is not to our president, our Congresspeople, or our parties, but to our foundation.

Happy Constitution Day.