A Stitch in Haste

Because, apparently, yet another one is needed.

Let’s assume for the moment that the proposed legislation is indeed in violation of Article I, Section 2 of the Constitution. Even if that is true, I’m not entirely convinced that this means the game is over. Even if that portion of the [C]onstitution might be violated, doesn’t the refusal to grant voting rights to those in D.C. (even if constituionally [sic] mandated) violate the equal protection guarantees secured to those residents by the Fifth Amendment’s Due Process Clause? The question here, it seems, is what should happen when two Constitutional provisions are in conflict. Why should Article I receive any more weight than the Fifth Amendment?
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However, depending upon the method of Constitutional interpretation employed, it is plausible that a Court could find that the equal protection concerns outweigh rigid fidelity to the text of Article I. It’s even more plausible that the Court could (as it often does) feign rigid fidelity to the principles of textualism, and then declare that the word “State” — for whatever reason — does not mean what we think it means. Indeed, why couldn’t the Court determine that since the principle of equal protection was not incorporated into the document at the time of its drafting, but came nearly 100 years later, there must be a reading of the Constitution that gives some effect to both clauses?

In sum, the House should proceed to pass the legislation if it is so inclined.

This is, of course, utter nonsense.

Heck, why not just declare the Senate an unconstitutional violation of “one person, one vote”? If the Fifth Amendment trumps Article I, then surely so does the Fourteenth Amendment, right?

In reality, there is nothing even remotely approaching a “due process violation” in the lack of full representation for the District. No pre-existing life, liberty or property interest is being taken away (not even the federal government can “take away” something that never existed in the first place). Indeed, it would be all the other American voters (i.e., those in actual States) who would suffer an arguable due process violation (i.e., by seeing their representation in the House diluted by a seat not authorized by Article I).

Also intriguing is the complete lack of recognition of the pesky fact that this debate is precluded not only by the plain text of Article I, but also by the Twenty-Third Amendment. The nation had an unambiguous opportunity, quite recently, to give the District full representation — and unambiguously said, “Um, no.”

[This] amendment would change the Constitution only to the minimum extent necessary to give the District appropriate participation in national elections. It would not make the District of Columbia a State. It would not give the District of Columbia any other attributes of a State or change the constitutional powers of the Congress to legislate with respect to the District of Columbia and to prescribe its form of government.
–H.R. Rep. No. 1698, 86th Cong., 2d Sess. 1, 2 (1960)

But to heck with all that, right? If it feels good, then do it! Why constrain ourselves to “rigid” (i.e., honest) textual interpretation?

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More:

Professor Richard Hasen … argues that Congress should pass the law despite any constitutional infirmities, as such an act will move the issue to the front of the queue and create the momentum that will result in a sucessful [sic] constitutional amendment.

It’s quite simple really: Knowingly calling for legislators to violate their oaths by passing laws that they know are patently unconstitutional — whether to “move the issue to the front of the queue” or for any other reason — should warrant summary disbarment (cf., this old post).

Previously:
–Why Does Utah Hate the Constitution?
–More District Enfranchisement Nonsense

Filed under: Constitutional Issues, Taxation & Fiscal Policy