Special Report

Selling Out the Constitution

Granting D.C. residents voting rights doesn't warrant violating America's founding document.

By 5.8.07

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The Republican Party, having squandered its electoral authority by succumbing to the dissolute wiles of Washington, appears to have learned nothing from its defeat last November. Faced with a clear challenge to the unambiguous language of the Constitution, many GOP leaders have abandoned their principles. Particularly shocking is the defection of Sen. Orrin Hatch (R-Utah).

As a former chairman of the Senate Judiciary Committee, Senator Hatch should view himself as a guardian of the Constitution. Instead, he set a low price for violating the document, a price that the Democratic majority says it will eagerly pay: one congressional seat.

At issue is granting voting representation to the District of Columbia. (The District, like American Samoa, Guam, and the U.S. Virgin Islands, already has non-voting delegates; Puerto Rico has a similar resident commissioner.) Adding a seat to Utah is meant to maintain the partisan balance.

The measure has already passed the House with 22 GOP votes. Former Rep. Jack Kemp (R-N.Y.) roamed the halls, calling the measure a civil rights issue. Sen. Hatch has cosponsored (with Sen. Joseph Lieberman, ID-Conn., a Republican favorite) companion legislation in the Senate.

The issue is simple, so simple that you'd think even legislators could get it. The residents of Washington, D.C. deserve to have voting congressional representation. The federal district is far larger than the core territory necessary for federal operations. There's no reason to disenfranchise hundreds of thousands of people.

However, the Constitution does not allow Congress to willy-nilly bestow congressional representation on disenfranchised groups. Article I states: "the House of Representatives shall be composed of Members chosen ... by the People of the several states."

The word is "states." Like Virginia and Maryland, California and New York. Not cities. Not districts. Not territories. Not enclaves. Not groups of people living overseas. Not extended families. But "states."

The Constitution could be amended to provide the District with congressional representation. Indeed, the 23rd Amendment explicitly provided D.C. with presidential electors. It did not, however, offer representation in the House or Senate.

Obviously, it is out of fashion these days to worry much about what the Constitution says. The president is supposed to be 35? Well, many 30-year-olds are pretty mature. The chief executive is supposed to be a natural born citizen? Well, why let a little ancient xenophobia prevent a good person from being elected? The president is limited to two terms? A silly measure directed posthumously against Franklin Delano Roosevelt shouldn't bind future presidents.

Thus, why let a constitutional provision limiting congressional representation to states actually limit congressional representation to states? After all, the Constitution is but a piece of paper written by a bunch of dead slave-owning white males and it shouldn't get in the way of justice, fairness, and good governance. Voting representation is a good cause, so who cares what the nation's fundamental law says!

That appears to be the opinion of not just Democrats, but some Republicans. Rep. Thomas Davis (R-Va.), a leading supporter, advocates that Republicans vote for representation and let the courts decide the issue. So much for GOP blathering about the sanctity of the Constitution and the importance of judges who will follow rather than fabricate the law. Congressmen, too, take an oath to the Constitution and have an obligation to follow the nation's fundamental law.

Jack Kemp is even less concerned about the Constitution, complaining about members who "literally walk away, saying the bill is unconstitutional. Unconstitutional? They voted for the Patriot Act!" Is his argument that if legislators voted for one unconstitutional bill, they should vote for another one? If that's his attitude, why bother having a Constitution?

Rep. Mike Pence (R-Ind.), who ran unsuccessfully for the Republican leader position after last November's electoral debacle, argues: "I cannot believe the Founders intended to deny 550,000 Americans representation." Actually, the Founders did so intend if those 550,000 Americans didn't live in a state. But the Founders never imagined that so many people would live in what was expected to be a small federal enclave.

Advocates of the legislation simply prefer not to talk about the Constitution. "This is one of the last chances the Republicans have to be a truly national party," says Kemp. Rep. Paul Ryan (R-Wisc.) opines that "This is about being on the right or wrong side of history."

If advocates of D.C. congressional representation really believe their rhetoric, however, they would provide the District with two senators as well. Why, after all, should D.C. residents be denied the right to vote for members of the upper body? If the Constitution is no barrier, then justice requires that city residents be treated like their countrymen in every respect. Providing one congressman looks like a cheap compromise, intended to pacify voters without unduly destabilizing the political structure.

Instead, advocates of voting representation for Washington, D.C. should craft a solution that is both just and constitutional. That would entail carving out a small federal district limited to the areas of the District with the highest concentration of federal properties, while combining the rest of D.C. with Maryland for voting purposes.

Indeed, Congress should consider full integration of Maryland and the District. The territory originally came from Maryland (land on the other side of the Potomac similarly provided to the federal government by Virginia long ago was returned). Incorporating the city of Washington into Maryland would give District residents the same privileges, including voting for senators as well as congressmen, as the citizens of any other state.

House Republicans have little influence, irrespective of the quality of their ideas. But Republican senators, especially those who have built their careers pushing for responsible judicial appointees, could take the lead in crafting a constitutional solution. Instead, Hatch, one of the leading Senate Republicans, has traded the Constitution for a fourth congressional seat for Utah.

The press release announcing his cosponsorship of the legislation included a bit of boilerplate arguing that District residents "deserve voting rights." But this was not Senator Hatch's main point.

Senator Hatch (along with Utah's other Republican senator, Robert Bennett) was more interested in the fact that the legislation would provide Utah with a fourth seat. As Hatch points out, "Utah missed an extra seat to North Carolina by just 856 people, which is an uncomfortably thin margin of error since Utah is seeing some of the fastest growth in the nation."

Utah suffered a bad break in the last census, but there always is a losing state that would get an extra congressional seat. Next time it will probably be a different state. There's no justification for this provision other than as a partisan pay- off. Maintaining the partisan balance certainly doesn't justify doing violence to the Constitution.

Senator Hatch's decision to cosponsor the legislation in the Senate raises serious questions about his role on the Judiciary Committee. Not only has Hatch been responsible for overseeing the confirmation of judicial nominees, but he once was talked of as a possible Supreme Court appointee. We are lucky he never was selected, having been willing, in the manner of Esau, to sell our constitutional birthright for a mess of political porridge.

District voting rights advocates understandably argue that the present system is unfair to D.C. residents. But that doesn't warrant violating the Constitution. As Sen. Hatch, more than most legislators, should realize.

Republicans should take the lead in pressing for a solution that preserves both the democratic and the republican aspects of America's political system. That's what being a constitutional republic is all about. We all want "justice." But justice requires preserving the rule of law, most particularly the integrity of the Constitution.

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).