September 19, 2007
Washington, D.C. III Posted by Joshua Zeitz at 11:15 AM EST John Steele Gordon’s post inspired me to dig lightly into the historical and legal debate over the status of Washington, D.C. Mr. Gordon believes that the proposed compromise to offer both the District and the State of Utah a new, voting member of the House of Representatives violates Article I, Section 2 and Article I, Section 8 of the Constitution. “The members of the House are to be chosen by ‘the People of the several States,’” Mr. Gordon explains, “and the District of Columbia is not a state, and this bill does not make it one.” If we were to apply a strictly literal interpretation of the Constitution, as some legal scholars and politicians argue we should do, then Mr. Gordon’s reading of Sections 2 and 8 might well preclude the possibility of granting Washington, D.C., a vote in Congress by statute, rather than by Constitutional amendment. But two centuries of American jurisprudence have established plenty of definitional wiggle room. At various times, our courts have located “penumbras” and “emanations” in the Bill of Rights that create “zones of privacy” where none explicitly exists. We’ve equated “persons” with corporations. We’ve broadened the concept of free “speech” to include actions and expressions that would never qualify as the spoken word in any respectable English-language dictionary. As Charles Evans Hughes once put the matter, “The Constitution is what the Supreme Court says it is.” There are long and complicated traditions that seek to locate meaning in the Constitution’s historical and evolutionary contexts. This is precisely why the proposed legislation that was blocked yesterday in the Senate included a provision to fast-track the process of judicial review and thereby ascertain the constitutionality of the law. In 1910 George Hodgkin wrote an article for the Political Science Quarterly entitled “The Constitutional Status of the District of Columbia.” It was, I think, one of the first modern scholarly attempts to analyze this complicated issue. At the time Hodgkin wrote his article, the pressing question was whether the District should enjoy home rule, which is a somewhat different question from whether it should be granted a vote in Congress. But the issues do overlap. Hodgkin examined the records of the Constitutional Convention and concluded that the framers “did not seek to deprive the people of the District of Columbia of their political privileges. The sole aim of that body was to secure the national government from state interference.” Given the novelty of the new federal system, Congress was concerned that if the capital were located in a particular state or divided between a group of states, the new national government would have difficulty exercising sovereignty. Hodgkin surmised that “in view of certain alleviating circumstances, more potent then than now, the Convention felt itself justified in sacrificing some of the political privileges of the people to the security of the national government; but certainly this sacrifice was anything but an end sought. It was found necessary to sacrifice participation in national affairs, since the machinery for it apparently could not be placed in operation under the peculiar plan whereby the capital was separated from the states; but the Convention certainly did not contemplate the irrevocable perpetuation of this sacrifice if some means of placing that machinery in operation should appear in later years under changed conditions.” Since 1787 the machinery of government has undergone sweeping change. In the eighteenth century few Americans were enfranchised; today most are. In 1868 the Fourteenth Amendment established the concept of dual citizenship, and in the twentieth century, the Court used this amendment to incorporate most of the Bill of Rights. Voting rights are now far more sacrosanct than they were 200 or even 100 years ago. What’s more, Congress has long granted the District a non-voting delegate, and her status (the incumbent is Eleanor Holmes Norton) is more complicated than the term “non-voting delegate” would suggest. House rules allow Norton to vote in and chair committees and subcommittees; she is allowed to serve on and vote in conference committees; she is also able to vote on legislation when the House meets in the Committee of the Whole. Since bills are often amended in the Committee of the Whole before moving onto a final vote (in which Norton is not permitted to participate), this allowance has more than symbolic power. Are these measures unconstitutional? According to the logic of Mr. Gordon’s argument, quite possibly so. If the District is not a state, then it should no more be permitted to seat a voting delegate on congressional committees than the editorial board of American Heritage magazine (also not a state). This is probably a more complicated question than it first appears, and since Congress has been unwilling to remedy—or incapable of remedying—the disenfranchisement of several hundred thousand citizens (most of whom are black), it may be high time for the Court to sort out the mess once and for all.
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