Why D.C. Representation in Congress Is Unconstitutional

The U.S. House of Representatives is expected very soon to consider legislation that would grant the District of Columbia a voting member in the House of Representatives.  It is expected that in an effort to give the bill appeal across party lines it would expand the number of members of Congress to 437, giving one new (presumably Democratic) seat to D.C. and the other new (presumably Republican) seat to Utah, which claims to have been short-changed by post-1990 census reapportionment.  I find the timing of this legislation questionable, given that our nation is currently conducting the decennial census mandated by our Constitution to allocate seats to the various states, but there are other troubling aspects of this scheme.

I voted against similar legislation in previous sessions of Congress, including just last year when it passed the House but stalled in the Senate.  My opposition to this measure is not founded on any belief that residents of the District of Columbia do not deserve congressional representation.  As former secretary of State of Michigan, I was chief elections officer for eight years, and ensuring that every citizen had the opportunity to have his voice heard at the ballot box was one my most important responsibilities.  The right to vote and the ability of American citizens to influence our government are the most important fundamental rights of our democracy.  So while I take voting rights very seriously, I am concerned that this proposed legislation seeking to give the District of Columbia the same congressional representation that states have is not the way to address this problem.

Congress’s ‘Exclusive Jurisdiction’

Though well-intentioned, this legislation is, in my opinion, unconstitutional.  The Constitution explicitly declares that representation in Congress can be granted only to states. Article 1, Section 2 states that "Representatives … shall be apportioned among the several states…"  Accordingly, the District of Columbia is currently represented in the House of Representatives not by a member of Congress, but instead by an elected delegate who can participate in debate and vote in committee but cannot vote on the House floor.  The same goes for other American non-state territories that are comprised of American citizens, including Puerto Rico and Guam.

Amendment Needed

Becoming a state is the only means by which the District of Columbia could gain a seat in the House of Representatives and, in order to pursue statehood, D.C. would first need the Constitution to be amended.  The District of Columbia is unique among all other non-state territories, because Article 1, Section 8 of the Constitution gives Congress exclusive jurisdiction "in all cases whatsoever" over the District of Columbia. Congress would need to be relieved of all responsibility for the district in order for the district to pursue statehood, and until such an amendment to the Constitution is passed, there will always be a question as to the constitutionality of a potential D.C. representative.

Proposals to give the district a vote in Congress have abounded for years, yet they have continually failed to pass.  A proposal to grant D.C. statehood was voted on in Congress as recently as 1993, and it was defeated by a vote of 277-153. The issue of granting representation for the District of Columbia is not one that can be taken lightly. Consider a scenario in which this proposal to add a representative from D.C. to the House were to pass and that respective representative cast the decisive vote on a controversial piece of legislation, like the recently enacted healthcare bill. If the legality of their vote were litigated up to the highest level, it is highly likely that the Supreme Court would rule their vote unconstitutional because the District of Columbia is not a state.  What would then become of these laws passed with an unconstitutional vote?

Despite the good intentions of supporters of this legislation, the constitutionality of the proposal must take precedent over any other political motives.  Our Founding Fathers gave Congress jurisdiction over the District of Columbia, the seat of the federal government, and only a constitutional amendment can change this.  I and every other member of Congress take an oath to preserve, protect and defend the Constitution.  I simply cannot and will not support legislation that I believe to be patently at odds with the Constitution.  The Democrat majority in Congress has made far too many attempts to circumvent the Constitution, including the mandate that American citizens purchase a product in the private marketplace that was included in the healthcare bill.  It is time for this Congress to realize that the Constitution is not simply a guide to be circumvented when it becomes inconvenient.  The Founders, in their genius, understood the Constitution wasn’t perfect and included a method to amend it when the people desire a change.  If Congress wants to give D.C. representation in Congress it must follow the rules laid out in the Constitution.