Not on Constitution Avenue

The Washington Times (Washington, DC), February 13, 2009 | Go to article overview

Not on Constitution Avenue


Byline: George C. Smith, SPECIAL TO THE WASHINGTON TIMES

As the Obama administration commences its reign of one-party government, attention has understandably focused on the president's economic stimulus program and his new approach to the foreign terrorist threat.

But preoccupation with these topics should not divert attention from what may be the most ominous, and radical, collaboration between the new president and the Democratic-controlled Congress: the enactment of blatantly unconstitutional legislation to bypass the constitutional amendment process and give the District of Columbia a seat in the House of Representatives in a crass triumph of raw political power over the rule of law.

With relentless clarity, in provision after provision, the Constitution specifies that representation in both Houses of Congress is limited to the states - and the District of Columbia is not a state. The very first sentence of the Constitution says, All legislative powers herein granted shall be vested in a Congress of the United States - not a Congress of the United Entities, Districts, Territories or Enclaves. The second sentence then specifies that the House of Representatives is to be composed of members chosen by the people of the several States. All told, no fewer than 11 constitutional provisions make it clear that congressional representation is linked inextricably to statehood.

If there were any plausible doubt that congressional representation was intentionally limited to the states when the Constitution was drafted in 1787, it would have been conclusively removed when the 39th Congress reiterated that Representatives shall be apportioned among the several States when it revisited the question of congressional apportionment in drafting the 14th Amendment in 1866. (In 1866 as well as in 1787, there was no ambiguity and no mistake in the express linkage of congressional representation to statehood.)

This does not mean, however, that the District of Columbia cannot obtain congressional representation. It only means it must do so by means of a constitutional amendment, as plainly provided in Article V of the Constitution.

For more than 200 years, this understanding of the Constitution (intelligible to any literate 12-year-old who reads its text) was accepted even by ardent advocates of D.C. representation. On repeated occasions in the 1960s and 1970s, for example, the Democratic-controlled House Judiciary Committee ruefully acknowledged that a constitutional amendment was essential if D.C. were to receive such representation. They expressly recognized that the Constitution did not allow Congress to grant D.C. representation by simple legislation, and proceeded to propose the constitutional amendment that was necessary. The amendment failed to achieve ratification, but the rule of law was honored.

The constitutional text limiting congressional representation to the states has not changed during the past several years. Nor have judicial interpretations of that text, which have consistently acknowledged that limitation. What has changed, however, is the willingness of D.C. representation advocates to run roughshod over the Constitution because they now have the raw political power to pass a statute awarding the District a seat in the House by main force. …

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