Monday, March 2, 2009
Pursuant to yesterday's post, here is some commentary about the coming battle over the D.C. Voting Rights Bill. First, I must say I thought that the blawgosphere would be all over this one, but it's been fairly quiet compared to the rash of posts generated by the announcement of the legislation. Somewhat predictably, the WSJ argues that the law is unconstitutional. (And further laments the fact that the District would gain a permanent House seat, while the Utah seat will be limited to two years). NPR has an interview with two great law professors - Jamin Raskin of American University and Johnathan Turley of George Washington University. Professor Raskin - one of the leading scholars on this issue - argues that since the District is treated like a state for so many purposes, it makes little sense to exempt its residents from the most basic rights of self-governance. Professor Turley does not beleive that the law will pass constitutional muster. Further, he states: "For constitutional scholars, this bill is like watching a very slow car crash happen, where Congress is ignoring all the constitutional signs that this is not an avenue for receiving this time of relief."
With respect to the legal issue, I couldn't agree with Professor Raskin more. As I have stated, I believe there are any number of prinicpled arguments that could be made in support of the act. With respect to the political issue, I couldn't agree more with Professor Turley - this law is headed for the Supreme Court faster than you can say "Marbury." It's so evitiable that the drafters included a provision in the law requesting expedited judicial review. All parties involved know what's coming.
So, what will each opponent bring to the ring? As I previously argued in this space, the proponents of the legislation can persuasively argue that the equal protection guarantees of the due process clause supercede the previous clause denying voting rights to the District of Columbia. But what about the other side? My guess is that they will rely heavily on the text, as most of the prior commentary suggests. However, there is helpful precedent as well. The most apposite case is likely Clinton v. New York, the 1998 case wherein the Court held that the Congress could not expand the president's power beyond that in the Constitution, even if both branches agreed the expansion was useful and necessary. The Court employed a fairly textualist approach (critiqued by Justice Breyer's dissent), and it would not take much creativity to argue that the same logic applies - if the Constitution doesn't provide for it, it cannot happen without a consitutional amendment.
No matter what the Supreme Court holds, District residents from Cleveland Park to L'Enfant Plaza are no doubt cheered. Regardless of the outcome, this is a "win-win" for D.C. If they win at the Court, the rights are theirs. If they lose, the stage is set to push for the Constitutional Amendment that is so desparately needed. And really, what would the campaign against such an amendment look like - "We've always excluded these people from voting even though the people who wrote the Constitution acknowledged it was a mistake so let's keep the mistake going for old time's sake?" Not the best political argument to be making, especially when you compare it to the other side's potentially powerful and compelling logical, emotional, and patriotic arguments.
I for one can't wait for this showdown. I'll keep you posted, and save you a ringside seat.