DIALOGUE ON 'THEMAIL' AT DCWATCH RE DC VOTING RIGHTSThe following excerpts are taken from the April, 1999, dialogue on "themail" at DCWatch. They discuss the two petitions currently being reviewed by the Courts concerning DC citizens' right to vote.
(4/21/99) DC Voting Rights
Tom MatthesAs city and private groups take their case for DC voting rights in Congress to a federal court, there are two relevant questions. First, should the people of the district have voting representatives in Congress? Second, do they have that right under the Constitution of the United States? The answer to the first is yes. Unfortunately, the answer to the second question is no and it isn't even close. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States..." The US Constitution, Article I, Section 2, paragraph 1. "The Senate of the United States shall be composed of two Senators from each State..." The Constitution, Article 1, Section 3, paragraph 1. "New States may be admitted by the Congress into this Union;" The Constitution, Article IV, Section 3.
With all due respect to DC residents impatient over their lack of full congressional representation, using clever lawyers to circumvent the plain English of the Constitution is more than a sheer waste of time. It is like spinning the wheels of a car stuck in the mud. You will only wear out the car engine and get no closer to the goal. Asking the courts to repeal the constitutional rule that only states be represented in Congress (which is why DC is only permitted a "delegate" in the House) and that only Congress can admit new states is the constitutional equivalent of President Clinton's approach to perjury "It depends on what the meaning of the word 'is' is". Efforts to get Congress to vote statehood for DC were thwarted by the constitutional requirement that Congress retain legislative authority over the district serving as the federal capital. But Delegate Norton believes that, this time, the 14th Amendment can trump the original text of the Constitution and that a court can order Congress to provide DC with the "equal protection of the laws" including congressional votes.
The honorable delegate should take another look: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." (Amendment 14, Section I). Unfortunately, again, DC is not a State, but a district. Of course, it is possible that some federal judge will buy the Norton interpretation of the 14th Amendment and either declare DC to be a State or order Congress to admit a full delegation of voting members from DC. If Congress refuses, there will be a constitutional crisis. But if Congress obeys, what precedent is established? Will the Virginia and Kentucky resolutions, penned with the help of Thomas Jefferson in answer to the Alien and Sedition Acts of 1798, be revived to justify state nullification of disliked federal laws (including laws approved by votes from a district)? Will South Carolina once again try to nullify tariffs or other taxes? Or will states start dividing themselves to create new states in order to increase regional clout in Congress? I have no idea, but be careful what you wish for. Remaking the government by dismissing the obvious meaning of the Constitution will not mend our democracy, but end it. The only ways to get congressional votes for DC are to amend the Constitution or seek retrocession back into Maryland. Neither will be easy, but trying to circumvent the "supreme Law of the Land"(US Constitution, Article VI, paragraph 2) is a detour into a cul-de-sac. The fastest way to an object is a straight line. It is up to the good people of DC to unite upon a constitutional method and go for it.
DC 's Voting Right's Lawsuits
U.S. Senator Paul Strauss, District of Columbia (Shadow),Although, Tom Matthes remarks were really directed at our respected Delegate, since it was actually my office that filed an Amicus Brief in the case, I thought I would respond to his misdirected and even more misguided attack. It is difficult to reply to so many misstatements of facts and law in just two paragraphs, but I'll try. While no one disputes the recitation of the original text, Mr. Matthes ignores the fact that the Constitution HAS BEEN AMENDED 27 times, and its meaning interpreted by the Supreme Court on far more occasions. It is in these amendments, and more importantly, the Supreme Court Cases interpreting these amendments on voting rights that the lawsuit is based. The lawsuit is based on the modern case law governing apportionment, or how voting districts are drawn. Although, a gross oversimplification, the same amendments and body of interpretive case law that prohibits improper gerrymandering, and makes the relatively new "one person -- one vote" doctrine a requirement, are what the law suit is in part based on.
Like the DOJ lawyers in opposition, Mr. Matthes can't seem to understand that States can be States without being called States, (like our "Commonwealth" neighbor across the river). Even more astonishing, was his recitation of the other Constitutional rights, specifically the privileges and immunities and due process clauses, as some sort of justification of DC's lack of rights. The voting rights advocates rely in fact on the Supreme Court cases which hold that these fundamental rights apply equally in the District of Columbia. In essence, to rule against us, the court will have to find that DC residents enjoy every fundamental right except the right to vote, an argument far more dubious than Mr. Matthes' plain English reading of the basic text. Those who try and reach legal conclusions by reading the Constitution out of context, without the amendments or the interpretive cases could easily reach the mistaken impression that segregation or even slavery remains legal, that African-Americans remain counted as 3/5 of a person, or even that Prohibition remains the law of the land.
(4/25/99) Constitutional Quirks In Our Favor
Mark EckenwilerIn the 4/21 issue, Tom Matthes argues that the DC voting rights theory is all hooey because, among other reasons, the 14th Amendment's equal protection clause only relates to "states." He's right that the 14th doesn't apply to us, but he hasn't followed the tangled thread of constitutional law far enough. Let's get some perspective: in Brown v. Board of Education, the Supreme Court held that "separate but equal" schools in the states violate the 14th Amendment. Since the 14th amendment doesn't apply to DC, would it be constitutional to restore the odious segregated educational system that existed here for decades? Of course not, but why not? Because in Bolling v. Sharpe (1954), the Supreme Court held that the Due Process Clause of the *Fifth* Amendment (which isn't limited in its reach to "states") includes an implicit "equal protection" guarantee.
In other words, we DC residents are guaranteed equal protection of the laws even though we do not live in a "state." I don't pretend to know if that's adequate to guarantee us voting rights (given the contrary implications elsewhere in the Constitution), but I do know that the (in)applicability of the 14th Amendment to us is beside the point, legally speaking.
($/25/99) DC Voting Rights & the Constitution
David SobelsohnTom Matthes is right that the lawsuit for DC voting rights is doomed. But not, as he argues, because the 14th amendment's equal protection clause doesn't support the case. Yes, the 14th amendment only limits state action, and yes, the lawsuit demands action from Congress, not from any particular state. But the plaintiffs' argument doesn't rely on the 14th amendment; it rests on the 5th, which does limit Congress. To be sure, the 5th amendment has no equal protection clause. But the same day the Supreme Court decided Brown v. Board of Education under the 14th amendment, the Court also invalidated school segregation in DC under the 5th. The Court reasoned (if you can call it that) that the due process clause of the 5th amendment contains the same equality principle, embodied in the 14th amendment's equal protection clause, that supported the decision in Brown. Since then, the Court has generally (not always) interpreted the 5th amendment's "equal protection principle" as identical to the 14th amendment's equal protection clause; the one limits Congress, the other limits the states. The Court has also found a general equal-right-to-vote command inherent in the 14th amendment's equal protection clause. Consequently, it's reasonable to argue the 5th amendment's equality principle has the same equal-voting-rights command and that it applies to DC voting rights. There's no doubt that it would violate the equal protection clause for a state to carve out a district whose residents had no voting representation in the state legislature.
Hence (the argument goes) Congress violates the equality principle in the 5th amendment by denying voting representation to residents of the District of Columbia.
Matthes is also off base when he raises the specter of a constitutional crisis if the courts were to order Congress to accommodate DC voting rights. Ten years after Brown, the Supreme Court ordered Congress to engage in massive reapportionment to accommodate one-person, one-vote. Reapportionment directly threatened the seats of incumbent members of Congress. Nevertheless, and despite a lot of grumbling and proposals to overturn the Court's decision, Congress complied. Congress would comply with a court order to accommodate DC voting rights. Finally, Matthes is wrong when he suggests that Congress couldn't, if it wanted, successfully recognize DC as a state. Yes, article I of the Constitution vests Congress with plenary power over "the Seat of the Government." But the Constitution doesn't specify a minimum size for that area, just a maximum (10 square miles). With Maryland's consent (since the territory was originally Maryland's), Congress could recognize a state in virtually the entire current area of the District outside a small federal enclave, over which the Congress would retain jurisdiction pursuant to article I. And even if constitutional questions remained, the Supreme Court has repeatedly ruled that questions of statehood recognition are better left to the political branches of government. If Congress decided to admit some or all of DC as a state, the courts wouldn't intervene.
Why. after all that, is the case doomed? How is DC statehood actually antidemocratic? Why is retrocession the way to go? I'll answer those questions in a subsequent post.
($/25/99) DC Voting Rights
Stewart ReuterBravo Zulu (well done!) to Tom Matthes on his last posting this subject. There's just no logic to having a minuscule new "state," with another layer of bureaucracy (Governor, Legislature and Courts) and two Senators for 600k people. The appropriate solution would be recession -- having all but a small Federal enclave given back to Maryland, with the number of HR reps that population would justify and voting for Maryland's Senators. This would satisfy the "voting representation" questions -- if that's not what the argument is about, then we should examine the ulterior motives of the complainers.
(4/25/99) 14th Amendment and District Representation
T. Jr. HardmanTom Matthes makes a fairly close call in his take regarding Congressional representation for the District. However, he makes the same mistake that has doomed -- and will eternally continue to doom -- any attempts to get District residents voting citizen status He thinks the District is worthy of a totally independent vote in Congress and that cannot ever happen unless and until the Constitution is amended specifically to allow it.
Here's what will work. A 14th Amendment approach is indeed the only workable strategy -- but the District is not and cannot ever be a State nor can it have equivalent status. However, the District lies entirely within the State of Maryland. Rather than suing the Federal government for voting rights in an independent polity, rather the suit should be directed against the State of Maryland for depriving residents of their voting rights. There is no need to retrocede the District to Maryland, the Federal government retains their control, the District gets their own congresscritters (probably two, perhaps three) with full vote, and vote for the two Maryland Senators. It's simple, top-down, avoids divisive issues, and removes all red-herrings and show stoppers.
(4/25/99) DC Statehood
Chris RichardsonMy suggestion for solving the vexing problem of no congressional representation for D.C. residents undoubtedly is an old one offered many times before. Just in case this idea hasn't been proposed in a while.
Washington, D.C. should be a relatively tiny portion of land (such as The Federal Triangle times five or ten) for conducting federal business. This chunk of land should then be zoned accordingly -- no residential, commercial, or other properties would then be able to exist on this "federally zoned" land. Consequently, any piece of land outside this zone would belong to either Maryland (north of the river) or Virginia (south of the river).
Would this plan be easy to implement? Of course not. Any solution, at this point, will necessarily be a fight among competing interests. Many gnarled issues to untangle, too, such as what to do with the commercial and residential structures that already exist in the heart of this proposed "federal zone." Nevertheless, this simple plan seems reasonable (and perhaps terribly idealistic) at heart.
(4/25,28/99) Adams versus Clinton
George S. LaRoche, (attorney for the Plaintiffs in Adams v. Clinton)
I am the attorney for the Plaintiffs in one of the two cases heard last Monday, Twenty Citizens of the District of Columbia [Adams] v. Clinton, which cases are the subject of Mr. Matthes' post. First, I represent twenty INDIVIDUALS. The City is not a party in my suit, nor are any "groups." In fact, the members of the panel I represent have different opinions on many issues, except one: that they are entitled to all rights of citizenship.But more importantly, the question presented in the Twenty Citizens case is not whether the citizens are entitled to representation in Congress. The fundamental question is whether Congress can continue to segregate the District from the rest of the United States. We do not ask the Court to award any form of representation, and we certainly do not ask the Court to order Congress to "do" ANYTHING. We ask the Court to restrain Congress from continuing to manage the District.
Generally, bracketing lawyerly quibbles, I agree with Mr. Matthes' reading of the Constitution, except for a couple MAJOR points. I also agree with Mr. Matthes that the answer is not clever lawyers. Remember, the District Committees in the House and Senate and the Department of Just-us have had the able assistance of the finest lawyers for two centuries, and that assistance has only cemented the bonds Congress holds. But please save your slams; I probably know more (and nastier) lawyer jokes than you do and I know where in the closet we hide our skeletons, so I can damn my profession quite effectively, if need be.
One major point on which Mr. Matthes is wrong is his assertion that there is a "constitutional requirement that Congress retain legislative authority over the district serving as the federal capital." There is no such thing. The Constitution ALLOWS Congress to exercise power, but it does not require it. Compare the District Clause with other clauses in Section 8 of Article I. Congress has the power "to borrow money on the credit of the United States" (clause 2), but no one has ever construed this to mean Congress is REQUIRED by the Constitution to run a debt.
Congress has the power "to declare war" (clause 11), but no one has ever construed this to mean that the Constitution REQUIRES the United States be in a CONSTANT state of war with some country.
The law is settled that, no matter how much power Congress has, that power can be restrained if it violates the rights of the citizens. For well over a century, the courts have regularly struck down Congressional enactments over the District of Columbia which violate the rights of the citizens of the District, so the power is clearly not unlimited. Mr. Matthes' statement that "DC is not a State, but a district" replicates the argument made by the Department of Justice last Monday. It seeks to settle a legal question by reference to abstract definitions. But Judge Garland challenged DOJ to explain why the definitions are dispositive, and DOJ had no answer. In fact, the definitions are part of the problem challenged in the Twenty Citizens case.
As for Mr. Matthes' arguments against Ms. Norton's position, I agree. But then she is speaking ONLY about the case of Alexander v. Daley, and she has consistently ignored the Twenty Citizens case. So it certainly cannot be said that her suggestions are at all pertinent to our case. Mr. Matthes states that "the only ways to get congressional votes for DC are to amend the Constitution or seek retrocession back into Maryland." This is incorrect. The citizens of the District would be represented in Congress (and in a state legislature, and would be able to run for either, and would have many other rights respected as well) if the District were EITHER a part of a State or were a STATE, itself. NEITHER would require amendment of the Constitution. But BOTH of these alternatives are wholly political. They cannot be achieved by litigation, but litigation can make the status quo untenable and open the door for the political process.
Clearly, Mr. Matthes favors retrocession. That's a political choice worthy of respectful debate (though I support statehood). But it does not enhance this political preference to dress it up as a legal necessity or to construct arguments which indicate that the Constitution militates against statehood. In conclusion, the clients I represent have chosen a wholly constitutional method of seeking redress of their grievances: they ask the court to protect them from continued violations of their rights. They do not ask the Court to "give" them a political status. They are content to continue the fight in the political arena, once the court fight is over, for the eventual status which will allow them to exercise their rights. I urge all readers and subscribers to this list to learn the facts OF BOTH CASES before judging either. To that end, please visit our web site: http://www.georgia-ave-mall.com/20dccitizens , where we are posting ALL substantive documents in the case. EDUCATE yourself and JUDGE for yourself. That's what self-government is all about.
(4/28/99) DC Voting Rights
Tom MatthesThe frustration of DC citizens over lack of votes in Congress continues to rise. Sometimes it damages common sense. Take Friday's column in the Washington Times by Jonetta Rose Barras. "Federal lawyers also claim that the Constitution gives Congress full authority over the city", she writes. But legislative control of DC is listed as one of the powers of Congress, along with raising taxes and declaring war, in Article I, Section 8. Use of the word "claim" in this context treats the Constitution as an obscure, ancient document in need of complicated translations, not a document written in English and available to all. Clever lawyers are needed for issues such as whether the commerce clause extends to gun controls in schools (the Supreme Court says no) or whether the First Amendment exempts students from reciting the Pledge of Allegiance to the Flag on religious grounds (the Supreme Court says yes). Attorneys are not needed to tell us that Article I. reserves votes in Congress to the States.
Some of the postings in the last issue argue that, if you take a phrase from the 14th Amendment here and a few words from the 5th Amendment there, the courts can rewrite the Constitution to slip in Senators and Representatives from DC. And Paul Strauss, the shadow senator, suggests that citing Article I against votes for DC is quoting the Constitution out of context because of the "one man, one vote" principle. But the very existence of the US Senate, where Wyoming has as many votes as California, violates "one man, one vote". And Article V forbids any future amendment to the Constitution that denies any State "its equal Suffrage in the Senate". If the courts can rewrite such basic provision of the Constitution, the document loses any permanent meaning. And a government in which the courts wield such absolute power is no democracy. Also, every federal judge owes his or her authority to the president and the Senate, even though neither is elected in accordance with "one man, one vote". Must the Supreme Court order the Senate dissolved, then disband the federal courts for lack of proper authority to sit? The Barras column last Friday laments that a number of leaders (including Bill Clinton and Jesse Jackson) skipped the rally for the lawsuits seeking DC votes in Congress and an end to congressional control over the city. I think they know a lost cause when they see one. The Constitution is not like a medieval exercise in alchemy, in which people with secret knowledge can turn lead into gold or transform a district into a State. The just cause of providing all US citizens with a real voice in Congress is too important to lose any more time with fanciful lawsuits. Let's do what it takes to amend the Constitution or return DC to Maryland, and get it done.
