D.C. Vote: As Constitutional As You Want It To Be
The D.C. vote train has left the station. Sixty-two senators this morning pronounced themselves ready to push ahead with a vote to give District residents a voice in the House of Representatives for the first time since the federal city was carved out of Maryland and Virginia in the formative years of the republic. By week's end, both houses of Congress are expected to create a voting representative in the House for Washington's half-million residents.
Next battle: Is this move constitutional? Answer: It's as constitutional as you want it to be.
The beauty of this country's Constitution is its flexibility within unbending principles. Wherever you work, go to school, or even worship, people are forever mucking around with the basic rules--the bylaws, mission statements and other attempts we make to create a framework for our behavior. But the Constitution has stood with strikingly few amendments or revisions for more than two centuries, and the basic law of the land guarantees all citizens the right to vote.
Ah, but the District of Columbia is a special case, opponents of D.C. voting rights protest. And they are correct: The Constitution singles out the District for control by Congress, which is given the power "To exercise exclusive Legislation in 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."
Even more problematic for the notion of giving the District a vote in Congress, the Constitution says that the "House of Representatives shall be composed of Members chosen every second Year by the People of the several States," and Washington is most definitely not a state.
But here's the fulcrum of the issue: Throughout American history, residents of the District have been denied a vote because they don't live in a state, yet in virtually every other policy area, D.C. residents are treated precisely as if they are indeed state residents. How's that? Well, the Constitution talks about "the several States" in several places, and nobody has sought to exclude Washington residents from the laws, benefits and responsibilities laid out in those other clauses of the document.
Examples: D.C. citizens are subject to the same laws governing interstate commerce as anyone else in the country is, yet the Constitution uses exactly the same words to give Congress the power to "regulate Commerce...among the several States" as it does in the language setting up the House of Representatives. D.C. residents similarly serve in the National Guard and the military despite the Constitution's reference to "the Militia of the several States." The rulings of federal courts hold sway in the District, even though the Constitution specifically defines the courts' jurisdiction in terms of "Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States," and so on.
Finally, D.C. residents pay federal income taxes despite the 16th Amendment's language giving Congress the power to levy taxes "among the several States."
So while it is likely inevitable that someone will file a constitutional challenge to the District gaining a seat in the House, what the courts do with such a suit is really more a question of politics than of law. Judges will have to decide if the intent of Congress is sufficient to change the original, if inadvertent, act of disenfranchising Washingtonians, or if the only way to reverse the Constitution's oversight on D.C. voting rights is by amendment. As the extensive briefs that have been written on this issue make clear, there is plenty of precedent on both sides to justify a decision in either direction--this week's action in Congress, therefore, will require judges, and, quite possibly, eventually the Supreme Court, to decide whether to go with the literal words of the Constitution on voting rights, leaving the District to be governed by modern interpretations of those words on all other issues; or to treat the District as one of the several states on voting rights just as we do on all other policy matters.
Approval of a vote in the House not only raises constitutional questions, but also a host of other issues. A short list: Is it time for more serious candidates to come forward for the new House seat? The current non-voting delegate is generally reelected without opposition, a sign of how little regard voters and politicians have for that sop of a position. Would Mayor Adrian Fenty leave office to go for that job? Would former mayor Tony Williams seek the post? Does the movement for D.C. voting rights now shift over to fighting for Senate seats, as one George W. Bush always predicted it would? Will congressional meddling in the District really cease? The first good test of that will be what happens to the congressionally-imposed school vouchers program, but from taxi fares to needle exchanges to charter schools to single-sex marriage, there are many such issues on which the city has not been permitted to set its own course. Does all that change overnight? Don't bet on it, as Congress retains control over the city's affairs. But will the tone change? What do you think?
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