Last week in the House Judiciary Committee, I voted in favor of legislation granting the residents of the District of Columbia the right to full voting representation in the House of Representatives. I believe this legislation is a constitutional remedy to a historic wrong. While many have focused on the political consequences of such a move, the only question for a Member of Congress on such matters is this: what does justice demand and what does the Constitution of the United States permit Congress to do to remedy this wrong?
The fact that more than half a million Americans living in the District of Columbia are denied a single voting representative in Congress is clearly a historic wrong and justice demands that it be addressed. At the time of the adoption of our present system of government, the federal city did not exist apart from a reference in the Constitution. When the District of Columbia opened for business in 1801, only a few thousand residents lived within her boundaries. Among the founders, only Alexander Hamilton would forsee the bustling metropolis that Washington, D.C. would become and he advocated voting representation for the citizens of the District.
The demands of history in favor of representation for the Americans living in Washington, D.C. is compelling. In establishing the republic, the single over-arching principle of the American founding was that laws should be based upon the consent of the governed. The first generation of Americans threw tea in Boston harbor because they were denied a voting representative in the national legislature in England. Given their fealty to representative democracy, it is inconceivable to me that our Founders would have been willing to accept the denial of representation to so great a throng of Americans in perpetuity.
But the demands of justice are not enough for Congress to act. Under the principles of limited government, a republic may only take that action which is authorized by the written Constitution.
In this regard, I believe that the legislation moving through the Congress is constitutional. And I am not alone in this view. In support of this legislation, Judge Kenneth Starr, former independent counsel and U.S. solicitor general observed, “there is nothing in our Constitution’s history or its fundamental principles suggesting that the Framers intended to deny the precious right to vote to those who live in the capitol of the great democracy they founded”.
Opponents of D.C. Voting understandably cite the plain language of Article I that the House of Representatives be comprised of representatives elected by “the people of the several states”, If this were the only reference to the powers associated with the federal city, it would be most persuasive but it is not. Article I, Section 8, Cl. 17 provides, “The Congress shall have power…to exercise exclusive legislation in all cases whatsoever” over the District of Columbia.
Justice Antonin Scalia observed in 1984, that the Seat of Government Clause, gives Congress “extraordinary and plenary” power over our nation’s capitol. Scalia added that this provision of the Constitution “enables Congress to do many things in the District of Columbia which it has no authority to do in the 50 states…There has never been any rule of law that Congress must treat people in the District of Columbia exactly the same as people are treated in various states”. United States v. Cohen, 733 F.2d 128, 140(D.C. Cir. 1984)
And Congress has used this power to remedy the rights of Americans in the District of Columbia in the past. In 1949, the Supreme Court upheld legislation that extended access to the federal courts even though Article III expressly limited the jurisdiction of the federal courts to suits brought by citizens of different states. As Judge Starr observed, “the logic of this case applies here, and supports Congress’s determination to give the right to vote for a representative to citizens of the District of Columbia”.
None of which argues for the District of Columbia to ever be granted the right to elect members of the United States Senate. In the most profound sense, from the inception of our nation, the House of Representatives was an extension of the people. I believe our founders left us the tools in the Constitution to ensure that all the American people have a voice in the people’s house.
The Senate, from the inception of our nation, was an extension of the states. Senators were appointed by state legislatures until 1915. The Senate was and remains the expression of the principle of federalism in the national legislature and should ever be so. If the people of the District of Columbia would like to seats in the Unites States Senate, they will have to become a state.
The old book tells us what is required, “do justice, love kindness and walk humbly with your God.” I believe that justice demands we right this historic wrong. The American people should have representation in the people’s house. I believe that kindness demands that, like Republicans from Abraham Lincoln to Jack Kemp, we do the right thing for all Americans regardless of race or political creed. And I believe humility demands that we do so in a manner consistent with our constitution, laws and traditions. The D.C. Voting bill meets this test and I am honored to have the opportunity to continue to play some small role in leading our constitutional republic ever closer to a more perfect union.
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