Monday, February 2, 2009

District of Columbia Voting Rights again . . .

Last week, I wrote about the pending legislation that would give residents of the District of Columbia a vote in the House of Representatives.   While I focused on the potential arguments in support of such a law to the exclusion of the textual issues, others examined the language and textual arguments.  Brian Kalt of Concurring Opinions wrote a piece arguing that the text of the Constitution clearly limits Congressional represenation to "the several states," and therefore the District can gain that right only through a Constitutional amendment.  He therefore concludes that legislators cannot pass the bill with a "clear conscience."  Professor Richard Hasen provides a similar argument over at, but argues that Congress should pass the law despite any constitutional infirmities, as such an act will move the issue to the front of the queue and create the momentum that will result in a sucessful constitutional amendment.

Let's assume for the moment that the proposed legislation is indeed in violation of Article I, Section 2 of the Constitution.  Even if that is true, I'm not entirely convinced that this means the game is over.  Even if that portion of the constitution might be violated, doesn't the refusal to grant voting rights to those in D.C. (even if constituionally mandated) violate the equal protection guarantees secured to those residents by the Fifth Amendment's Due Process Clause?  The question here, it seems, is what should happen when two Constitutional provisions are in conflict.  Why should Article I receive any more weight than the Fifth Amendment?

This is an interesting conflict.  Certainly, Marbury tells us what the Court should do when an act of Congress or the Executive conflicts with the Constitution, but what about when the Constitution arguably conflicts with itself?  Wouldn't any decision by the Court in such an instance necessarily amount to an amendment of the Constitution sub silentio on that point?  Do we want the Court to engage in such behavior?  Whether we like such conduct or not, in reality, each time the Court interprets the Constitution, it amends its meaning ever so slightly.  Plessy v. Ferguson rendered the Equal Protection Clause of the 14th Amendment a nullity for nearly ninety years.  At the other end of the spectrum, Griswold and Roe completely rewrote the document by recognizing a new "penumbra" of rights.  These examples show that the Court's interpretations can amount to amendment.   

In light of the foregoing, what would prevent the Court from adopting an approach that limits the meaning of Article I?  If the D.C. bill is passed, depending upon the method of Constitutional interpretation employed, it is plausible that the Court could look at the issue and determine that Article I is dispositive.   However, depending upon the method of Constitutional interpretation employed, it is plausible that a Court could find that the equal protection concerns outweigh rigid fidelity to the text of Article I.  It's even more plausible that the Court could (as it often does) feign rigid fidelity to the principles of textualism, and then declare that the word "State" - for whatever reason - does not mean what we think it means. Indeed, why couldn't the Court determine that since the principle of equal protection was not incorporated into the document at the time of its drafting, but came nearly 100 years later, there must be a reading of the Constitution that gives some effect to both clauses? 

In sum, the House should proceed to pass the legislation if it is so inclined.  In my opinion, they needn't fear, as Professor Kalt suggests, that they are somehow behaving unethically by deliberately passing unconstitutional legislation.  Rather, they are confronted with a clear conflict in the Constitution.  When presented with a fork in the road, neither path is wrong.  It's simply a choice of where you'd like to be at the end of your journey.   


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First, I wouldn't say that it would be unethical for members to vote yes on the bill, or that they can't do it with a clear conscience. I can see why it sounded like that from my original post, but I think this excerpt from something I said in the comments more accurately reflects what I meant:
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On clear consciences, I guess I am uncomfortable with the notion that a member of Congress could say "well, I personally subscribe to Turley's argument (that the bill is unconstitutional), but if Starr and Dinh are saying it's OK, then I can vote for it with a clear conscience."
I think that Hasen was probably thinking more of members who don't have a personal opinion one way or the other, and can throw up their hands with a clear conscience, because Starr's and Dinh's arguments are not frivolous (or, as you put it, non-trivial).
I don't disagree with that. But I would like the members of Congress to try to reach an independent judgment about the bill's constitutionality if at all possible. By my count, over a third of the members of Congress are lawyers (and of course the president is). Hoyer is. And most of the others could at least give it a try. If and when they do pick a side, I think that it should not be Starr/Dinh's.
I concede that someone could, in clear conscience, take the other side after thinking about it. But I don't think that they could, in clear conscience, not even think about it.
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Second, on your main point, I agree that if two constitutional provisions conflict, the more recent enactment controls, because it can be said to have amended the former one. But I still disagree with the interpretation of the Fifth Amendment that you set out. Aren't you basically arguing that, since the district was established (after 5A was ratified), its exclusion from Congress has been unconstitutional (or waiting for the Court to evolve far enough to say so)?

And if so, isn't the current bill unconstitutional too, as it would continue to exclude D.C. from the Senate? And Puerto Rico from the House and Senate? Et cetera?

Posted by: Brian Kalt | Feb 2, 2009 7:57:38 PM

Heck, why not just declare the Senate an unconstitutional violation of "one person, one vote"? If the Fifth Amendment trumps Article I, then surely so does the Fourteenth Amendment, right?

Also intriguing is your complete omission of the Twenty-Third Amendment. The nation had an unambiguous opportunity to give the District full representation -- and unambiguously said, "Um, no."

But to heck wiht all that, right? If it feels good (to you), then do it!

Finally, calling for legislators to violate their oaths by passing laws that they know are patently unconstitutional -- whether "to initiate a discussion" of for any other reason -- should warrant disbarment.

Posted by: KipEsquire | Feb 3, 2009 8:55:20 AM

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