A House Vote For D.C.?

Andrew Roberts

Last week British historian Andrew Roberts had lunch at the White House with George W. Bush and a glittering array of other writers: Norman Podhoretz, Paul Gigot, Michael Novak, Gertrude Himmelfarb, Irving Kristol, and Irwin Stelzer. Here is Stelzer's account, from the Weekly Standard online edition. And here's Michael Novak's slightly different account of the lunch. The news: Karl Rove and Bush are having a contest to see who can read the most books this year.

A House Vote for D.C.?

The Washington Post today urges the House to pass the bill sponsored by Virginia Republican Tom Davis to create two new seats in the House, giving one to Utah and one to the District of Columbia.

My inclination would be to support the bill: It does seem anomalous that District residents (of which I am one) don't have a voting member in the House of Representatives. Furthermore, I admire Davis's ingenuity. He introduced the bill when Republicans still had a majority, and his addition of a seat for heavily Republican Utah ensured that passage would not affect the House's majority. Why Utah? Well, by happy chance Utah, under the formula apportioning House seats among the states, was entitled to the 436th seat in the 435-seat House. Utah even brought a court case claiming it was entitled to the seat because the Census should have given Utah credit for Mormon missionaries living abroad; it was fought by North Carolina, which to everyone's surprise had gotten the 435th seat, and Utah lost in the Supreme Court.

No one has any idea which state will be entitled to the 436th seat after the 2010 Census, and odds are it won't be one that can be counted on to produce a Republican district as reliably as Utah can. So Davis seized a narrow window of opportunity, and I would expect the bill to pass. It gives Democrats no partisan advantage now, though presumably it will after the 2010 Census, since the District can be counted on to elect a Democrat.

But I do have one problem with the bill, one the Post's editorial acknowledges but does not settle for me. The Constitution in Article I, Section 1, states that "The House of Representatives shall be chosen every second Year by the People of the several States." But the District of Columbia is not a state, by express provision of the Constitution. Article I, Section 8, gives Congress the power "To exercise exclusive Legislation in all Cases whatsoever, over such District (not to exceed ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of Government of the United States." The District of Columbia currently consists of land ceded to Congress by the state of Maryland (land ceded by the Commonwealth of Virginia was retroceded to that state in 1846). It seems to me that there is a powerful case that it is unconstitutional to seat a member from the District of Columbia in the House.

The Post addresses this point:

"Former judges and constitutional scholars such as Kenneth Starr, Patricia Wald, and Viet Dinh, not to mention the American Bar Association, believe the bill is constitutional. They argue that Congress has repeatedly treated the District as if it were a state and that this treatment has been upheld. For his part, Mr. Davis has delved into history to make a compelling argument that the lack of a vote was never the aim of the Founding Fathers but rather an "undemocratic accident."

I have not read the Starr, Wald, Dinh, and Davis arguments but am prepared to believe they're serious, and I withhold final judgment on the issue until I do so. But I have to disagree with the Post's closing sentences:

"No court has ever weighed in on the D.C. Voting Rights Act, so the constitutional question is open. That, though, is an issue fo the courts to decide, in the event of a legal challenge. It should not be an excuse for Congress to continue to deny a basic right to more than half a million people."

The assumption here is that only the courts can rule on a law's constitutionality. But every member of Congress swears an oath to uphold the Constitution. I think that means that every member of Congress has an obligation to vote against a law he or she deems unconstitutional, whether or not he or she thinks a court would so rule. And whether or not a court rules at all. If this law is passed, it's hard to see how it could be challenged in the courts. Could some litigant charge that a bill passed by the margin of the one vote of the representative of the District of Columbia be invalid for that reason? Such a case may never arise, at least for a long, long time. And if it did, the court would have to take into account Article I, Section 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The Post wants members of Congress to vote for this bill whether they think it's constitutional or not. I think members have an obligation to vote against it--and they certainly have a reasonable basis for voting against it--if they agree with those who, as the Post concedes, are "serious" in believing that the bill violates the Constitution.

By Michael Barone