February 26, 2009
I don't know how even to articulate an argument that it's constitutional to give a vote to a D.C. representative in the House.
Shredding the Constitution. It's not just for the Bush administration anymore.
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156 comments:
"Yes, We Can."
There. That should suffice, right?
It's the fair is fair amendment.
Who needs a constitution when we have the One!
Seriously, though, it's right there, in the fine print that lets' Hillary be SecState despite the Emoluments Clause.
See it?
Right there?
If it becomes law, the bill will expand the House for the first time since 1913.
Is that correct? I'm pretty sure Alaska and Hawaii weren't states in 1913. In fact, I know Hawaii wasn't, as late as the Pearl Harbor attack. It was a territory. Did all the other states lose a bunch of representatives when Hawaii joined the Union, or is the Washington Post just wrong?
Anything is justified in the pursuit of social justice.
Something very good and useful was lost in this country when offhand dicta of Marbury v. Madison somehow warped the American polity into believing that the Supreme Court is the only -- only -- branch of the federal government that can determine constitutionality.
I hope you point that out in Con Law, Althouse.
Look, they can amend the Constitution if they want to do this. It was done before to give DC electoral votes. It can be done again.
I'm sure it must be in one of them thar "penumbras." Or at least an emanation from one.
Next up:
(2)Guam
(3)Northern Mariana Islands
(4)Puerto Rico
(5)United States Virgin Islands
(6)American Samoa,and
(7)Johnson Atoll
He did say 57 didn't he?
Welcome to the Commondearth Of The United States of America
I would imagine that this one is a slam dunk no for the Supremes. The question is: who has standing? Althouse?
Most of the Bush Administration's excesses, real and imagined, can be undone through Executive Orders or Presidential directives.
But the excesses, real ones, by this Administration working with this Congress will be with us forever.
And as they say, forever is a long time.
Unitary executive? Hell, unitary state.
"I won."
After years of hearing from the liberals and Dems how reckless and stupid (and unconstitutional) Bush was,
sadly, we're now having to relearn that age old truth that we knew so well back in grade school:
thems that smelt it, dealt it.
We're at war. A different kind of war.
Like people here really give a flying fuck about this.
Just another day to bitch and whine about whatever.
*By the way...in Texas...handgun ownership: unrestricted, no permit or license required. Rifle and Shotgun ownership: unrestricted, no permit or license required.
Quayle said..."After years of hearing from the liberals and Dems how reckless and stupid (and unconstitutional) Bush was"
Who introduced the amendment?
Duh.
Indeed. Why would people who visit the blog of someone who teaches constitutional law courses be concerned with issues of constitutional law?
It's all a farce, of course. What we're really concerned with is squirrels and looking at attractive men in goofy outfits.
Like people here really give a flying fuck about this.
Yes, seriously, who cares about the Constitution?
Congressional apportionment, second amendment, nobody cares!
Anything is justified in the pursuit of social justice.
However Maguro meant it leftists are in dead earnest when they say it, especially the anything part. Getting the message yet? all of you Obama will govern reasonably types?
The sponsor of the amendment, Sen. John Ensign (R-Nev.)
The Polling:
District's gun laws get repealed in the course of gaining a vote in the U.S. House, is it worth it?
* Yes, democratic representation is critical.
34%
* No -- what good is a vote if we're not safe?
25%
* Yes, both measures reinforce my Constitutional rights.
12%
* No -- the District doesn't merit a House vote at all.
22%
*By the way...in Texas...handgun ownership: unrestricted, no permit or license required. Rifle and Shotgun ownership: unrestricted, no permit or license required.
Vermont: No permit required for residents to carry a concealed weapon. Such a hellish backwoods conservative state...
"Who introduced the amendment? Duh."
Well then it must be a game. The gun law gets implemented and stays, Utah gets their new representative, all the while knowing that the DC representative will certainly get stuck down.
But the other things remain.
Sofa, if you cared about the Constitution you would have been criticizing things like...illegal wiretapping of American citizens...
Oh, and this from the Cato Institute:
Far from defending the Constitution, President Bush has repeatedly sought to strip out the limits the document places on federal power. In its official legal briefs and public actions, the Bush administration has advanced a view of federal power that is astonishingly broad, a view that includes
* a federal government empowered to regulate core political speech—and restrict it greatly when it counts the most: in the days before a federal election;
* a president who cannot be restrained, through validly enacted statutes, from pursuing any tactic he believes to be effective in the war on terror;
* a president who has the inherent constitutional authority to designate American citizens suspected of terrorist activity as "enemy combatants," strip them of any constitutional protection, and lock them up without charges for the duration of the war on terror— in other words, perhaps forever; and
* a federal government with the power to supervise virtually every aspect of American life, from kindergarten, to marriage, to the grave.
President Bush's constitutional vision is, in short, sharply at odds with the text, history, and structure of our Constitution, which authorizes a government of limited powers.
Seven, You know little of anything about damn near anything relating to law or the Constitution.
Your racist postings the other day reveal you for what you are: A bigot.
dbp - I really don't care about the gun laws in any state. It's their prerogative to vote as they please.
My point is that the uproar over Washing, D.C.'s gun laws are bogus.
We can pick & choose which laws we will obey and enforce. It is just a piece of paper no?
Yes. All my racist rants are here in the archives.
SMGalbraith - The last eight years certainly feel like "forever"...and you can bet your ass the the rest of the world feels the same way.
I'd bet the families of the dead and wounded, both here and in Iraq, feel that way, too.
Ummm, Michael, in case you didn't notice, the complaints here aren't on the gun control amendment, but about giving DC a representative in Congress. Duh!
It was going to be a good thread about constitutional issues. Then, people who don't know anything at all about the document came along.
I guess the important thing to remember is that it must be right and legal if the people on your side support it. If the people on the other side support it, it must be wrong and illegal.
A strange outlook, but terrifically easy.
Sofa, if you cared about the Constitution you would have been criticizing things like...illegal wiretapping of American citizens...
I didn't need to. You complained plenty enough for both of us.
For the sake of consistency, though: I did not approve of some of the things Bush did.
Not that it's relevant to anything anyways. Are you even capable of making a real actual argument? If I was the biggest hypocrite in histroy, that would somehow justify further abuse of the Constitution?
Well, we're already ignoring the part granting Congress the power to "exercise exclusive Legislation in all Cases whatsoever, over such District," by establishing the DC City Council. So who cares, really, about what the Constitution says about the District?
The simplest way to make a DC rep consitutional is to declare DC citizens Maryland residents. This would address DC statehood concerns.
No one has to live in the District of Columbia. They're choosin' it, man.
FLS said...The simplest way to make a DC rep consitutional is to declare DC citizens Maryland residents. This would address DC statehood concerns.
I think you would get little or no complaints from the conservatives. After all, the land that is now DC was Maryland. What is now Arlington County VA, was once the Southern portion of the District.
However, Maryland doesn't want those DC residents.
I'd bet the families of the dead and wounded, both here and in Iraq, feel that way, too.
And what that has to do with the recent action by the Senate to give representation to DC is anyone's guess.
Care to comment on the Constitutionality of this action?
If you can.
Question for Althouse: unconstitutional though it plainly is, is this a justiciable issue (assuming a plaintiff with standing), or is this like the ineligibility clause, which it seemed to me that you thought was nonjusticiable even given an appropriate hypothetical plaintiff?
(I wrote about this issue two years ago, but not very well; I may have to revisit the piece now.)
I'd bet the families of the dead and wounded, both here and in Iraq, feel that way, too.
Have you no shame, sir?
Have you actually visited or talked to any wounded military or families? Donated time or money to help in their recovery or support dependents? or are yours crocodile tears?
The law professor is a little confused. The Obama adminstration, is the executive branch. The actions you are citing were taken by the legislative branch. I know it's a tough concept to grasp.
Oh, and can you please link to a single post where you took the position that the Bush administration shedded the Constitution?
I didn't think so.
Not to get sidetracked (yeah, like that qualifier is going to work):
Who said?:
Every drop of blood that was shed or is being shed in Afghanistan and Iraq is the responsibility of bin Laden and Zawahiri and their followers.
Answer
Okay, not exactly a disinterested party in the internecine doctrinal dispute occurring.
But interesting...
Don't waste your time BJM.
He's a far left kool-aid drinking troll
The Obama adminstration, is the executive branch. The actions you are citing were taken by the legislative branch. I know it's a tough concept to grasp.
Where did the Professor blame the Obama Administration for this action?
She states (index): Obama's Congress.
Fah!!! Constitution Schmonstitution. That old piece of old historic toilet paper? Who needs it anymore. It's the new age of hope and change. It's so 18th century.
George -- Read carefully"
Shredding the Constitution. It's not just for the Bush administration anymore.
Where is it suggested that Obama is involved in said shredding, as opposed to Congress? Is it not implied, at least arguably, that Bush shredded?
Please do learn to read before spouting off like an idiot. Thanks.
Yes, amend the Constitution. It's the only way. Then we can be done with this endless back and forth once and for all. And we won't have to kowtow to Utah.
Like you cared when the Bush administration did it.
George E. said...
The law professor is a little confused. The Obama adminstration, is the executive branch. The actions you are citing were taken by the legislative branch. I know it's a tough concept to grasp.
Oh, and can you please link to a single post where you took the position that the Bush administration shedded the Constitution?
I didn't think so.
====
Gracias.
This really is the sort of case that evokes a line Scalia has used variations on (Morrison v. Olson springs to mind): if to describe this case is not to decide it, words no longer have any meaning.
It also evokes one of the most brain-dead excuses offered for Obama last year: he used to teach constitutional law, they would tell us, as if they believed (or hoped we would infer) that (a) he taught real constitutional law - conlaw 1, structural conlaw - and (b) that teaching it means that he respects it. Since he has already shown himself willing to violate his oath of office, however, I doubt he will lose sleep over signing this latest atrocity.
I don't know how even to articulate an argument that it's constitutional to give a vote to a D.C. representive in the House.
That's racist! D.C. is mostly black, and you're going to deny them representation because of some abstruse interpretation of a document written by slaveowners?! Don't you care that your abstract ivory-tower "articulations" have consequences for real people? You sound like one of those libertarians! If you don't prove you're not a racist, I'm going to cry!
I love the loony left. I love them because they are so sad. They are reduced to arguing that Obama voter Althouse shouldn't complain about clearly unconstitutional laws because she didn't support their pet claims before.
It's not really about getting the law right for you silly people, is it?
Did what, when?
The President acting as Commander-in-Chief during war, right after the greatest attack on the US in her history, ordered the interception of suspected communications between the enemy and suspected agents here.
For that, he is condemned.
Somewhere, FDR, Lincoln, Wilson and others are laughing hysterically.
I am a lefty liberal and I clearly am about getting the damn law right. It isn't constitutional to pay taxes and not have rep in Congress. Therefore, we need to AMEND THE CONSTITUTION.
This answer is no more constitutional than what we have now. What we have no is no more constitutional than the solution.
AMEND THE CONSTITUTION.
Period. End of sentence by a liberal.
"The simplest way to make a DC rep consitutional is to declare DC citizens Maryland residents. This would address DC statehood concerns."
I agree, 100% . . . but the attempt to amend this bill to do that instead was defeated.
Well then it must be a game. The gun law gets implemented and stays, Utah gets their new representative, all the while knowing that the DC representative will certainly get stuck down.
It seems pretty obvious that's how it ought to go. The constitution forbids DC from having Congressional representation, so that's out. Congress has the power to regulate the total number of Congressmen, so the addition of the new seat that Utah would get should stand. And of course Congress has full authority over DC's laws, so the repeal of the gun laws also stands.
So not only are the Democrats ignoring the Constitution as usual -- they appear to be doing so in a way that will end up helping Republicans and and an issue Republicans care about.
Par for the course for Pelosi, Reid and Obama.
I don't want to be a part of Maryland.
It seems pretty obvious that's how it ought to go. The constitution forbids DC from having Congressional representation, so that's out.
====
Amend the Constitution.
It isn't constitutional to pay taxes and not have rep in Congress.
It is entirely constitutional to deny representation to a person even though they pay taxes. You've confused the Constitution with the Declaration of Independence. The Declaration doesn't constrain Congress. It might be morally wrong to deny representation to the residents of DC, but the Constitution nevertheless requires us to do so.
The sensible thing to do would be to merge DC into an existing state. It isn't large enough or useful enough to merit statehood, and non-states shouldn't get Congressmen.
It isn't constitutional to pay taxes and not have rep in Congress.
Where in the document does it say that? Or in case law?
I'm not playing "gotcha" here. I'm interested in where the basis for your argument comes from.
DC does have a delegate (Eleanor Holmes Norton) that votes on legislation with the qualifier that it's not the decisive vote on legislation.
No. The sensible thing to do is amend the constitution to give us representation in the Congress.
My understanding was that EHN cannot vote on the floor.
Basically, everything the left EVER projected about Bush is what is actually true about Obama and the left.
Remember how they all said there would never be another presidential election because Bush wouldn't allow it.
Projection.
We are so screwed.
Where's the empathy althouse?
A King with his parlementary majority rules easily. The Soros Demos are reforming the error that George Washington made in 1783. It's never too late to create a European style Rulership.The Roman Empire can still make a come back with another name.
No. The sensible thing to do is amend the constitution to give us representation in the Congress.
It is sensible for people who want DC represented in Congress. I don't, so amending the Constitution to do so would be senseless.
If you want representation, move somewhere else.
You know, the more I think about it, and looking at the headlines on Drudge:
'09 BUDGET SPENDS $11,833 FOR EVERY AMERICAN...
$25,573.48 PER TAXPAYER...
THE $1.75 TRILLION DEFICIT...
I will now make a prediction:
Under Obama we're going to fall into such a state of economic fear and social chaos that he WILL declare martial law and suspend elections in 2012.
Bush really WAS 'the Last American President.'
thirdresponder said...
"It isn't constitutional to pay taxes and not have rep in Congress."
Of course it is. where on Earth - or, more precisely, in the Constitution - do you get that idea? My copy doesn't have a "fair's fair" clause or a "no taxation without representation" clause.
"I don't want to be a part of Maryland."
That's nice. Still: If you want representation, accept retrocession; if you don't accept retrocession, representation obviously isn't all that important to you. And in no event is this remotely important enough to amend the Constitution for.
"The sensible thing to do is amend the constitution to give us representation in the Congress."
Amending the Constitution is very rarely a sensible response, which is why - of the thousands of proposed amendments - all but 27 have been rejected (and there are at least four too many that should have been rejected, in my own view). And it's hard to see why it's a sensible response to a trivial problem with several alternative solutions, such as the instant situation.
I searched and searched. It doesn't say that. My bad. It was in the Decl of Independence, according to someone else.
But come on. Get into the spirit of it. Do you really think the founders who envisage Cong meeting once every x number of months, right?, would really say that citizens of the US have to be boxed into a state to vote? I don't think they really thought that.
Pat (and Trad Guy), come on. You are just being silly.
I once worked for the United States government. In a small training class once, there was this hideously ugly, truly moonbat leftist. In a conversation she was having once -- I'll never forget this -- she said exactly the same thing that you just said about Obama.
Don't let your policy differences make you a nut. Nobody likes a nut.
Elections will continue. Relax.
Ann said she couldn't begin to even articulate an argument. Well, just using google might help. I mean this IS an articulation of an argument:
Proponents of voting rights legislation claim that Article I, Section 8, Clause 17 (the District Clause), which grants to the Congress "exclusive" legislative authority over the District, also allows the Congress to pass legislation which would grant D.C. voting representation in the Congress.
wikipedia
thirdresponder said...
"I searched and searched. It doesn't say that. My bad. It was in the Decl of Independence, according to someone else."
Well, that's quite a difference! So by "unconstitutional" you mean "not unconstitutional," it turns out.
"Do you really think the founders ... would really say that citizens of the US have to be boxed into a state to vote?"
Of course they would. It was absolutely clear in the founding generation and until at least 1960 that citizens living in the federal District would not be able to vote. That is why the issue of retrocession was raised repeatedly in 1801 by Rep. Smilie, in 1803 by Rep. Bacon, and by Rep. Hunter in 1846. That is why the 23d amendment was necessary (as the House report accompanying the bill put it, "the Constitution has restricted [electing Presidents and members of Congress] ... to citizens who reside in states ... [and there is a] resultant constitution anomaly of imposing all the obligations of citizenship without the most fundamental of its priveleges").
No. I don't wanna be a part of Maryland.
Did the founders really envision people - a large amount of people - living here, permanently?
Ok, haters, I'm gonna go take a bath now.
Balfegor said...
If it becomes law, the bill will expand the House for the first time since 1913.
Is that correct? I'm pretty sure Alaska and Hawaii weren't states in 1913. In fact, I know Hawaii wasn't, as late as the Pearl Harbor attack. It was a territory. Did all the other states lose a bunch of representatives when Hawaii joined the Union, or is the Washington Post just wrong?
In 1913, Congress set the number of representatives in the house to 435. When Alaska and Hawaii became states, the umber of represenatives temporarily increased, but following redistricting after the 1960 census, house membership was restored to 435.
This bill would permanently increase membership to 437, even after redistricting follwoing the 2010 census.
Michael you fucking douche, I care - DC is a city, it is not a state. It deserves nothing more than what it has - a corrupt government, lawlessness, high murder rate, 80% illegimate birth rate, extreme poverty, high taxes, and a reputation as the democrat version of heaven.
Bitch set me up, indeed...
Thirdresponder said...
"Ann said she couldn't begin to even articulate an argument. Well, just using google might help. I mean this IS an articulation of an argument: 'Proponents of voting rights legislation claim that Article I, Section 8, Clause 17 (the District Clause), which grants to the Congress "exclusive" legislative authority over the District, also allows the Congress to pass legislation which would grant D.C. voting representation in the Congress.'"
That isn't an articulation of an argument, it's an inerudite schoolboy's idle doodle.
The enclave clause, which you are misquoting (stop quoting third party sources at us and read the Constitution! Many Conlaw issues are complicated, but all are made opaque if one doesn't even read what it says), provides that Congress may "exercise exclusive legislation in all cases whatsoever, over [the District of Columbia] ... and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings" (emphasis added). Can Congress award Congressional representation to federal "forts, magazines, arsenals, dockyards, and other needful buildings" over which it exercises like authority to that exercised by it over the District? That is the upshot of your theory.
What is more, since Congress has plenary authority over the district, what other mischief can it do, do you suppose? If your theory is that Congress can violate the structural Constitution pursuant to the enclave clause's grant of power, can it also violate the Fourth Amendment, making residents subject to random warrantless searches of their homes? Why not? Rep. Payne (D-Al.) made just this point in arguing against the afore-mentioned Hunter bill (to retrocede Alexandria) in 1846: do not think that the enclave clause makes "Congress omnipotent within the District of Columbia, ... able to perform any act ... it deems proper, independently of the limitations of the Constitution. ... [T]he Constitution gives Congress exclusive power of legislation, but not unlimited power [of legislation, and so Congress may not use the enclave clause to] ... abolish the right of habeas corpus, of trial by jury, or do any of those acts prohibited by the Constitution."
Did the founders really envision people - a large amount of people - living here, permanently?
Um. Yeah. I assume that's why they, you know, built the city, and put in all those grand avenues according to L'Enfant's master plan. Besides which there had been a substantial population in the district for quite some time before it became the District of Columbia. Georgetown had also been a thriving Maryland port town before it was incorporated into the new District.
thirdresponder said...
"Did the founders really envision people - a large amount of people - living here, permanently?"
I doubt it. Why is that relevant? And, even if it is relevant, why does it not cut against your position, given that the apparent assumption by the framers that there would not be a large population in the federal district makes it even less likely that they contemplated giving it voting rights?
My proposal: amend the constitution to largely eliminate the 17th amendment and require state legislatures to appoint senators (and explicitly prohibit the popular election thereof) and grant one representative for every 100,000 citizens of the states, territories and Washington DC (yes, that would make approximately 3200 representatives, but it would provide for more direct representation of constituencies and reduce endemic widespread corruption [corruption would be on a more individual basis.])
Joe -- Why stop there? Let's have a representative for every 10 people. For every one person!
Because 1 for 100,000 would restore the balance of power envisioned by the founding fathers.
But if we're being snarky, why not reduce the number of representatives to 100 and senators to 50 so we can get rid of all that nasty deadlock?
Seven machos: I once worked for the United States government. In a small training class once, there was this hideously ugly, truly moonbat leftist. In a conversation she was having once -- I'll never forget this -- she said exactly the same thing that you just said about Obama.
- - - -
Yes, that was my point. They projected all of this "constitution shredding" nonsense on to Bush.
But Obama is actually doing it.
"It isn't constitutional to pay taxes and not have rep in Congress."
Of course it is. where on Earth - or, more precisely, in the Constitution - do you get that idea? My copy doesn't have a "fair's fair" clause or a "no taxation without representation" clause.
I think this raises a valid point; consider that the disenfranchised citizens living in Puerto Rico pay no Federal income tax in consequence. Make DC a tax haven.
The intent of WDC was to have a small neutral non-state area for the seat of federal government, controlled and operated by Congress, Is there now something worng with that now? I you didn't like that you could always move.
I am curious about how we can stop this. It's obviously up to the people to protect the Constitution, as the sworn Representatives forget there oath as soon as they stop speaking it.
Isn't this the job of a law professor, educate the students? As I read the Constitution the only way this is Constitutional is if the Constitution is amended.
It's clear the ACLU isn't going to make a peep.
The most agregious shredders of the constitution and worst serial violators of civil liberties were FDR, JFK and his Attorney General RFK, followed by LBJ. Bush did nothing compared to them- there has not even been proof of harm-, yet they are held up as paragons of Democracy and civil liberties.
Obama and his pals may break their records and eliminate the constitution altogether. Remember he claimed during the campaign that it is an imperfect document.
Maybe they wll even bring back FDR's internment camps and create a final solution.
I just thought that someone should point this out:
Giving house representation to DC is much more CLEARLY unconstitutional than what we know about warrantless surveillance conducted by the Bush administration (and continuing with Obama, for what its worth).
Dear douchebags and others with nasty condescending trifling attitudes,
The 16th amendment says the Congress can tax the states. Is that not your connection between taxation and representation?
There is a distinct lack of sympathy on this hatefilled board. We can be asked to join the military, we can join the military, we pay taxes, we do a whole wide-ass range of things that your god damned "several states" are required to do. We are BORN here for Christ's sakes. We have GRANDPARENTS who are born here, and you are telling us to MOVE?
Go fuck yourselves.
I have never ever used language like that before on a message board, but it just offends me to the core, that you can just type in letter that form the word: MOVE.
FUCK YOU.
Funny how the outrage wasn't there when congress passed a bill ensuring John McCain, born outside the US, could be inaugurated if he won. Sure it was just a technicality, but the Constitution is clear as a hydrophilic's piss in saying the President must be native born. No amendment, just a plain old bill. Booyah.
Maryland has stated on more than one occasion that it does not want DC back. It has Baltimore and PG county - it does not need more criminals, thugs or drug addicts. Non-congressmen are not welcome, either.
Just two nuggets I found from a quick comb through the ratification conventions. Discussion of the enclave clause seems to have been limited (there was more concern about juries sitting in diversity cases in the District than for voters there); the only two directly relevant points come from the Virginia and New York conventions. Edward Pendleton, President of the Virginia ratification convention, thought that the enclave clause "does not give Congress power to impede the operation of any part of the Constitution, or to make any regulation that may affect the interests of the citizens of the Union at large." 3 Elliot's Debates 439 (June 16, 1788). A day later, and 420 miles away, in Poughkeepsie, New York, Thomas Tredwell told the New York ratification convention that, in his view, "[t]he plan of the federal city ... departs from every principle of freedom, as far as the distance of the two polar stars from each other; for, subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote, is laying a foundation on which may be erected as complete a tyranny as can be found in the Eastern world." 2 op. cit. 402 (June 17, 1788). Within two days, speakers at two ratification conventions rejected, without material contradiction, the enclave clause theory advanced by vote proponents and the theory that the founding generation didn't foresee the disenfranchisement of the residents of D.C.
thirdresponder said...
"The 16th amendment says the Congress can tax the states."
No, that isn't what the Sixteenth Amendment says. The Sixteenth Amendment says that the Congress may lay income taxes without apportioning them among states, thus overriding Article I § 9's requirement that direct taxes be so proportional.
"There is a distinct lack of sympathy on this hatefilled board. ... I have never ever used language like that before on a message board"
This isn't a message board. Also, point of information: "hate filled." Two words, not one. If you've demonstrated the typical level of civility, education, and articulacy of District denizens, you've rather made the case for those who would deny the district the vote altogether.
Ah, perhaps that is one of those "fatal flaws" of the USC that Obama (read the Left) was talking about...
if you want to read every argument for and against the dc vote debated to death, resurrected, then debated to death again, go to dcist.com and browse the archives.
If the District is a State, that it has been illegally denied representation in the House and Senate for the past 200 years. But of course, it isn't a State, and thus cannot have voting representation in either chamber without a constitutional amendment.
Also, the Constitution requires that "Representatives shall be apportioned among the several States according to their respective numbers..." If Congress is allowed by statute, to provide for representation by a non-State, why is there any reason to believe that the representative of D.C. have to be apportioned based upon the relative population of D.C. versus the States. Why can't Congress, by statute, give D.C. 200 representatives? and 20 Senators?
Giving house representation to DC is much more CLEARLY unconstitutional than what we know about warrantless surveillance conducted by the Bush administration (and continuing with Obama, for what its worth).
True statement. Were you trying to be sarcastic?
No, I wasn't being sarcastic... a lot of people above seem perplexed that anyone could be bothered by the DC voting nonsense, while ignoring Bush's "shredding of the constitution". Most of Bush's alledged transgressions were much more questionable, and reasonable people could debate them. The DC thing is inarguably not constitutional.
What's all the more galling is the way that proponents of this bill cloak themselves in the mantle of a just cause, as if this bill was motivated by any higher principle than boosting the Democrats' vote count (the dems who voted for it) and toadying to the majority party (the republicans who voted for it - including, embarrassingly, mine).
but the Constitution is clear as a hydrophilic's piss in saying the President must be native born.
No, Danny, it does not. Please read Article 1 Section 2 again, and make sure you do not mentally insert "native" where it says "natural."
Furthermore, Danny, the bill passed didn't "ensure" anything. For one thing, if there were a genuine Constitutional issue, a Senate bill wouldn't matter a hill of beans. And it wasn't a bill anyway, it was a non-binding resolution.
FLS - The simplest way to make a DC rep consitutional is to declare DC citizens Maryland residents. This would address DC statehood concerns.
Simple, except that the people of the State of Maryland want nothing to do with them.
****************
All the blubbering about "taxation without representation" is cute. For every dollar the DC resident pays out in Fed taxes, they get 11 bucks in Federal spending. That absolutely dwarves any largess given to the States. Robert Byrd only manages about a 1.80 in loot for each buck paid out.
At a town meeting I told our Congressman who supports DC statehood on the "no taxation without representation" matter that if our state could get the money per capita DC is lavished with - it would be worth our State getting rid of its dozen plus Reps and both Senators.
Many in the audience laughed, the Congressman nervously.....
*******************
SMGalbraith said...
It isn't constitutional to pay taxes and not have rep in Congress.
Where in the document does it say that? Or in case law?
It's in case law, but the original "No taxation without representation" is just a slogan.
For most of US history, we had no problem taxing women and not giving them the vote.
And presently, we are happy to tax out of state residents or foreigners or ex-felons without giving them a state or Federal vote.
What is a "third responder" anyway? And why should we give him our sympathy ?
Totally missed that you had posted this, Althouse (all my entries this evening were direct to previous posts, via gmail responses).
All I can is ... geeeeee, but "wouldn't this seem 'constitutional-ish'"?
(To be clear, I'm directly quoting someone else, as I did elsewhere a bit ago: it's not my [non-lawyer] opinion.)
Ah, but the judicial branch only has jurisdiction over controversies, and what can possibly be controversial against something so blatantly unconstitutional?
Do you ever wonder if Scalia doesn't secretly write these bills just to supply himself with material for scathing opinions? I can scarcely wait to read the paragraph which explains the difference between a district which is treated as a state for certain purposes and a district which actually is a state.
Reader -- Read the document. Get back to us. Thanks.
Zach said...
"I can scarcely wait to read the [Scalia] paragraph which explains the difference between a district which is treated as a state for certain purposes and a district which actually is a state."
You could really do it in a sentence. To say that the district is treated as though it were a state for some purposes - as in the 23d amendment, for example, or the Tidewater case - is to concede that it is not a state. If it was, you wouldn't need to treat it as such for some purposes.
7M: 3 things I'm sure of: 1) It won't matter what I think, 2) it'll turn out however it turns out, 3) and I'll just live with it.
What I'm NOT sure of is what document to which you refer. I did read the link (as I almost always, always do); the quote was from something I watched earlier this evening. As I stated, what I quoted wasn't "my" quote and I'm not a lawyer. It seems to me that pretty much put, and puts, my comment in context.
Your nihilism aside, Reader, I speak of the Constitution.
I agree with your sentence, Simon. I just want thunderbolts accompanying. I want the opinion to sting. I want people to worry about their professional reputations trying to defend this kind of dreck.
The whole point of denying DC the vote was to keep the District politically weak in terms of official power, preventing it from becoming an imperial and imperious capital. It is supposed to be unrepresented so that its natural influence as the seat of government remains checked by its non-representation in that government.
The biggest difficulty here, unanticipated by the Founders, was that transportation and communications technology has advanced to the point where civil servants and lobbyists can live in Maryland and Virginia and commute to their jobs in DC, allowing them to be voters. Similarly, denying the vote to the residents of DC does not seem to have prevented DC from becoming increasingly an imperial capital. Thus, the non-representation is clearly pointless.
However, it is also clear that the relation between Federal and state power has become so skewed that it is not even conceivably necessary to protect the Federal Government from the influence of a state government, and so there is no need for a federal district at all.
The logical conclusion is simple enough; abolition of the District of Columbia by Constitutional Amendment, and retrocession of sovereign authority to the state of Maryland. There isn't any need for even a minimal federal enclave; the White House and Congress no more need to be in a federal district than the Pentagon or CIA headquarters does.
Seven, the Constitution is boring. People v. Foranyic, now that's tasty stuff. Here's an opening sample, courtesy jdub at Ace:
A police officer acted reasonably under U.S. Const., 4th Amend., in detaining a man he observed with an ax riding a bicycle at 3 a.m. A reasonable police officer, considering the totality of the circumstances, would reasonably suspect criminal activity might be afoot upon viewing someone riding a bicycle, with an ax, at 3 a.m., even though no recent “ax crime” had been reported. The officer could reasonably eliminate firefighting and logging from the list of possible pursuits the man might have been engaged in, and while there were doubtless some reasonable explanations that might be conjured up, the possibility of an innocent explanation did not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.
Oh, there's more. Someone had a lot of fun writing this one.
I really think the Constitution of the United States was the best that could be done at the time in terms of freedom and democracy, and I think it's pretty good overall still.
The one criticism I have is that it is a little difficult to amend, thus giving courts and other undemocratic institutions too much power, and giving those who can create fancy theories from nothing the opportunity to violate democratic processes.
On the other hand, people can be idiots. Look at Prohibition. The fact that we ever had a constitutional amendment against drinking shocks the conscience.
You'll need to pick a fight with someone else, 7M. It doesn't make sense to do so with me on this issue, and I'm not sure we'd even disagree.
And I suppose it's pointless to say that I've read the constitution more than once in my life--though again, not "read" in the lawyer sense.
Regardless: Good night and sweet dreams to you.
It really doesn't make sense to me for someone to say that they haven't read the Constitution, thus admitting that they really have no idea what they are talking about, but nevertheless to then say that some huge change that is clearly not permitted by the Constitution "sounds constitutional-ish."
But good night to you as well.
Except for one thing: Perhaps that "geeeeeeeee" in my original comment here didn't convey the snark I intended.
* opens door *
* looks around *
* sniffs the room *
} } } ¡ SLAM ! { { {
I've read the Constitution in the laymen's sense (meaning, I'm no conlaw expert). And, one more time, I was quoting someone else, scathingly, with regard to "constitutional-ish," not presenting my own view.
Can't be any clearer than that.
If it's constitutional for Congress to hand out delegates like party favors then anything I want to be constitutional is, in fact, found somewhere in the penumbra emanations. In other words, there is no constitution; it's just a document with words that we can redefine to taste.
Wow, gettin' a bit wound up there, eh turdresponder? I was born in DC, too, and I had the good sense to move away. The place is a hell hole and I can see that living with all that stress is doing damage to your brain. Just because your parents and grandparents made terrible life decisions does not mean you are stuck with their awful choices.
DC gets a rep.
The census will be conducted out of The White House.
ACORN will receive hundreds of millions to 'register' voters.
Sound like the system is being rigged for the next election and generations to come.
Obama is getting mentored by Hugo Chavez
The 16th amendment says the Congress can tax the states. Is that not your connection between taxation and representation?
No. Federal territories are under the direct authority of Congress. The reason an amendment was needed for the states was precisely that they were states, with distinct legal privileges, that needed to be overridden for Congress to impose taxes on their populations, no? It's a federal system. If we look at territories like Hawaii, we can see they were subject to federal taxation without representation prior to statehood.
Congress drafted PL 62-5 and passed it in 1911 to take effect in 1913 to set the size of Congress as fixed and not proportional. There was a single instance of a new State being admitted to the Union when the House gained two members, but that was then re-adjusted to the old level and that did not happen for any entries after that. It is interesting that the Constitution only talks about proportions being fixed, not actual House size. Thus if Congress wanted a fixed House size, every ten years they would need to pass legislation for a new proportion... but we did allow Congress to set its size in the Constitution.
That latter point was brought up by one of the Anti-Federalists arguing for stronger federalism. The argument was that the checks and balances should require that the people set the proportional representation, not Congress, as this would give too much power to Congress to set its own size. This is one of the few arguments that Madison, et. al. never did respond to: to strengthen the federal system by adding a check by the population on the House so that the people would decided what the size of their direct representative body should be. It is one of the most subtle of weaknesses in the federal system drafted, and we see it playing out, today, with gerrmandered districts as we go for fixed size, not fixed proportions.
If you went for a Maximum Size House as is allowable at 1:30,000, you would wind up with just under 10,000 representatives. Strangely enough, if you take all of the representatives and their paid for full and part-time staff and sum that, you wind up with just over 10,000 people to cover the needs of the Nation. Or just around 1:30,000. Save that those are unelected... yet also the ones that draft bills for representatives, handle calls and flack constituents. Set the proportion to be fixed for a Max. House and you would get better service, need no additional overhead, and divide up the money in politics amongst the nearly 10k instead of over 435.... or break the power of lobbyists to do much of anything in the House as each member would have ZERO staff. Being a member of the House, then, would be a job to represent your district, not a sinecured position. And we already have the tools necessary to let such a body organize itself.
Got a 1,500 page bail-out package? Get a dozen or so members to do a digital mark-up, share their work and start handing out their summaries. Two or three such groups would begin to drastically alter the legislative process and rip out the earmarks as they aren't good for your district or the Nation. And at 30,000 citizens, every vote does, indeed, count in one's district.
Article IV: Section 3: "New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress."
Article I: Section 2: "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature."
Article I: Section 8: "The Congress shall have Power... To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;"
Maryland can retrocede their portion and gain an additional House member.
The right of retrocession belongs to Maryland OR would require an amendment to revise the language in the Constitution which established DC, and a reversal of the 23rd Amendment, with the consent of Maryland.
The Congress cannot override the Constitution. It doesn't matter that Maryland says it doesn't want DC citizens. They say that by voting up or down on a Constitutional amendment, not a popular vote on a straw poll.
Connie du Toit said...
"Maryland can retrocede their portion and gain an additional House member. The right of retrocession belongs to Maryland"
Maryland can't retrocede their portion of the district - they already ceded it and it's now in the posession of the feds, so the right of retrocession belongs to the federal government. That being so, you're right on the money that "[i]t doesn't matter that Maryland says it doesn't want DC citizens." If Congress decides to retrocede some or all of the district to the donor state, it's not clear to me that the donor state can decline, and it's abundantly clear that Congress can coerce them to.
Try this:
The constitution means whatever good thinking liberals think it should mean.
After all, roughly a third of the population and two thirds of public commentators operate under this definition already.
In order for DC to have a Representative in the House, they'd have to become a state, or the language of the 23rd Amendment would have to be revised, by another Constitutional Amendment, to specifically allow House membership.
The 23rd specifically EXCLUDED representation in any other body except the Electoral College:
Amendment XXIII: "A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment."
The precedent for retrocession already exists, because Virginia did it:
From 1840 to 1846, Alexandrians petitioned Congress and the Virginia legislature to approve retrocession. On February 3, 1846 the Virginia General Assembly agreed to accept the retrocession of Alexandria if Congress approved. Following additional lobbying by Alexandrians, Congress passed legislation on July 9, 1846 to return all the District's territory south of the Potomac River back to the Commonwealth of Virginia, pursuant to a referendum; President Polk signed the legislation the next day. A referendum on retrocession was held on September 1–2, 1846. The residents of the City of Alexandria voted in favor of the retrocession, 734 to 116; however, the residents of Alexandria County voted against retrocession 106 to 29. Despite the objections of those living in Alexandria County, President Polk certified the referendum and issued a proclamation of transfer on September 7, 1846. Despite the objections of those living in Alexandria County, President Polk certified the referendum and issued a proclamation of transfer on September 7, 1846. However, the Virginia legislature did not immediately accept the retrocession offer. Virginia legislators were concerned that the people of Alexandria County had not been properly included in the retrocession proceedings. After months of debate, the Virginia General Assembly voted to formally accept the retrocession legislation on March 13, 1847.
Assuming the foul thing gets passed, who will have standing to challenge it and at what time will they be able to do so?
"hate-filled"
You know, Third-Responder is kinda right this morning.
Seemed like he was arguing in good faith, even if he didn't have all the background knowledge. Came in with a decided interest.
And folks turned on him like he was Lucky or another established troll.
Simon, what's with the crabbiness this morning?
Not a good morning for Althousian commentariat.
Like most liberals, "arguing in good faith, even if he didn't have all the background knowledge" seems to be sufficient. It is not. He claims to be a 3rd generation DC resident but has never bothered to educate himself. Oh, right - that didn't come out right - he is a DC resident, therefore could not educate himself.
Crabby? Yep. The denizens of that cesspool are looting this country and we want to argue about whether or not the 600,000 losers who dwell in that particular circle of hell should have a vote in congress. Screw them and the pig they rode in on.
Re: Seven Machos:
I would imagine that this one is a slam dunk no for the Supremes. The question is: who has standing? Althouse?
I don't have any special knowledge of the law here, but it occurs to me that someone who was penalized under a law enacted in which the DC representative was the deciding vote might have standing to challenge the law as invalid, due to the illegality of the representative who cast the deciding vote, and thereby implicitly strip that representative of voting powers. No?
Wouldn't any State have standing to challenge the law as well. The effect of the law is to dilute the State's representation in Congress, in a manner that is not "proportional" based upon the population of the "Several States. That harm is concrete enough to support standing.
Also, perhaps under Reynolds v. Sims, any voter has standing to challenge the law as an unconsitution dilution of his Congressional representation (given that Representatives are chosen by the people of the various States), in a manner inconsistent with the Constitution.
"Like most liberals..."
I think you meant 'libtards'. Much more in keeping with the erudite tone.
Weird how they won't listen what with this persuasive charm and all...
It's frustrating when the Althouse comments get to sounding like LGF.
Steve Machos saaid:
Something very good and useful was lost in this country when offhand dicta of Marbury v. Madison somehow warped the American polity into believing that the Supreme Court is the only -- only -- branch of the federal government that can determine constitutionality.
It's almost as if Marshall were clairvoyant and saw what was coming - that congress and the executive would blatantly ignore the document for their own gain.
Why is our Federal government in Washington DC? Many wanted it in either New York or Philadelphia, but the Southern contingent axed that because they felt it would give the northern states too much power. The north would not let it reside in Virginia because of the same concern, power concentration in the south. Virginia was the political powerhouse at the time, giving us Washington, Jefferson, and Madison, to name a few. So we ended up with this compromise. Part of thatcompromise that placed Federal Government in the the District of Columbia, instead of NY and Philly, decreed that the district itself was to have limited voting power, thus keeping the South from gaining even more power than it had at the time.
Paddy, crabbiness? I didn't mean my comment above to sound crabby. It just points out that Connie had her terminology backwards: it would be the feds that would do the retroceding, not the former donor state (and proposed recipient state).
Balfegor and Henry, I wonder if the enrolled bill rule might prove thorny for that kind of challenge, but one way to meet the standing requirement would be to assert the problem as a defense in a criminal appeal (cf. United States v. Munoz-Flores, 495 U.S. 385 (1990) (defendant asserted that a bill had originated in the wrong house)).
Sonicfrog, we need not speculate on the motivations of the founders in creating a federal district for the capital instead of placing it in Philadelphia or somewhere; after all, they told us what was on their minds. See footnote 1 of this post.
From Wikipedia: "Norton was elected in 1990 as a Democratic delegate to the House of Representatives, defeating city council member Betty Ann Kane in the primary despite the last-minute revelation that Norton had failed to file D.C. income tax returns for several years and owed thousands of dollars."
What a surprise! Another Democrat who can't figure out how to file taxes. Must be a virus.
This is not nearly the slam dunk that many people seem to think it is. Even conservative legal scholars (some despised by Democrats and Liberals) have articulated an argument that it is constitutional. Including Viet Dinh (http://www.dcvote.org/trellis/research/vietdinh112004.pdf) and Ken Starr (http://www.dcvote.org/trellis/response/kstarr062304.pdf).
Speculate? Who was speculating?
On the Compromise of 1790, which determined the eventual location of the Capital; Hamilton wanted it in NY, though, by popular congressional consent, it probably would have ended up in Philly. Jefferson and Madison, who wanted it on the Potomac, both greatly feared that the location of the Capital would affect national policy, and a northern location would produce a government that would favor northern ideals, and would force an end to the Southern way of life, i.e. slavery. Now both Jeffy and Maddy thought that the practice would die out on its own eventually, but they did not want the North to dictate when it would end.
Hamilton, a potent political player and obstacle to Jeffy and Maddy, was consumed with the prospect that his goal to have the national govt. assume state debts, a vital piece of his plan to put the government on sound financial footing, would not pass in congress. So Mr. H struck the bargain with Maddy and Jeffy; give me the national fiscal I want, and I'll agree to have the Capital located on the Potomac. He got what he desperately wanted. All agreed that the Capital would be a district, eliminating the of a permanent northern nor souther bias emanating from the Capital itself. And Hamilton, in the end, was not nearly as consumed with the location of the Capital as J and M, the future financial state of the nation was his obsession at the time, and he was probably fine with idea of locating the Capoital on the Potomac in honor of his friend and mentor, the Man himself, Gen Washington.
And now for your amusement, "The Compromise of 1790", as interpreted by a fellow traveler!!!
This is interesting because one of our contributors @ http://www.blackbooklegal.com doesn't see the relative clarity of the constitutional issue wrt Prof. Althouse's argument.
Mike, the arguments posed by Dinh, Starr et al are vaporous, and were dismissed in the essay I linked yesterday evening. They aren't serious arguments even if they're made by serious people.
This is a trial balloon for the real goal of the Dems to give D.C. two voting Senators who will always be Democrats. After a while they can say, hey they have a House member, why shouldn't they have a Senate member too?
the arguments posed by Dinh, Starr et al are vaporous,
Dinh's argument breaks down into:
1. Congress can make any law it wants to respecting the District, regardless of the restrictions in the rest of the Constitution. It can give its residents two votes apiece, if it so chooses. It can make every third Washingtonian a Member of Congress, if it likes.
2. Washington DC residents can sue residents of the 50 states in Federal court -- hey presto, DC is just like a state.
Well, if DC is just like a state, why not give it two Senators, like all the real states have?
Ooops. Sorry for the typo's.
That should be "Capitol" not "Capital" (that's the credit card people who I pay every month)
I have a nice cold (as in bad) and am violently coughing at regular intervals, making it hard to proof read, not that that's a great skill of mine anyway.
The Courts treat DC as a "State" with respect to over 500 federal laws and give the same rights to the citizens of DC as if they lived in a state even when parts of the Constitution say those rights are reserved for the citizens of the "States". I'm talking about the right to a trial by jury(6th Amendment), the right of a citizen of another state to sue a citizen of DC(Article III, Sec. 2, 11th Amendment)
If the Courts can give me those rights as a citizen of DC, despite the Constitution saying that they are only for the "citizens of different states", I don't see how this is that different.
IANAL, but this seems like a pretty good slam dunk to me. If Congress were understood to have the power to take this action, then why did it take a Constitutional Amendment, the 23rd, to allow the people living in the District to be able to cast a vote for President?
The fact that the Constitution gives Congress the power of "exclusive Legislation in all Cases whatsoever" over the District. Which I take to mean that Congress can give or take away as much representation as they properly see the need to have to exercise their exclusive legislative powers.
The 23rd amendment was needed to give the citizens of DC a vote in the executive powers of the Government(and if DC grows much more, this amendment will need to be changed to give DC residents their full voting rights)
DCresident said...
"The fact [is] that the Constitution gives Congress the power of 'exclusive Legislation in all Cases whatsoever' over the District. Which I take to mean that Congress can give or take away as much representation as they properly see the need to have to exercise their exclusive legislative powers."
You take it wrong; that's a silly argument with absurd consequences explained in part II of this post.
Sonicfrog, that's exactly right; Andrew Hyman put it well a couple of years ago: "If Washington D.C. is a 'state' for purposes of this clause, then Congress never had any choice in the matter of representation, and so legislation on the subject is superfluous. If, however, Washington D.C. is not a 'state' for purposes of this clause, then plainly Washington D.C. need not have representation according to its numbers."
But, after all, what does it signify that men should have a written constitution, containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes of a logical net. The legislature will always make the power which it wishes to exercise, unless it be so organized as to contain within itself the sufficient check. Attempts to restrain it from outrage, by other means, will only render it more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will, when they feel a desire to go farther, avoid the shame, if not the guilt, of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose. (Gouvernour Morris, December 22, 1814)
The DC House Voting Rights Act passed 61 to 37. The included amendment restoring 2nd Amendment rights to DC passed 62 to 36.
I understand there's significant opposition in the House to the restoration of the 2nd Amendment provision. (Mr. Roberts has made his decision. Now let him enforce it?)
The irony would be thick indeed if an unconstitutional bill failed to pass because the House would not agree to restore an existing constitutional right.
Was it Hitler that said if a Big Lie is told over and over again it will become the truth?
.illegal wiretapping of American citizens...
The program that the liberals who don't want to protect American citizens and who have made common cause with islamo terrorism listed to international phone calls. This was not aimed at American citizens. The program was briefed and approved by Congressional leaders. It has been further sanctioned by additional law - which Senator Obama voted for.
Bush kept us safe for 8 years. Now a congressional commission says its almost a certainty we have a city attacked in 5 years.
Yep, Bush is the bad guy, not the guy named Osamma.
Down is Up, War is Peace, Eurasia has always been at War ....
If Washington D.C. is a 'state' for purposes of this clause, then Congress never had any choice in the matter of representation, and so legislation on the subject is superfluous.
simon, simon, simon [rolls eyes]
You fail to realize that we have learned so much more about the intent of the framers since 1960.
Granting DC a Congressman was simply something the Framers never got around to doing, because they were all dead by the time the District was platted out, in 1791.
FLS, I take it that was tongue in cheek, but at any rate, I'm not much interested in the framers' intent, to the extent there is such a thing (see Easterbrook articles passim), I'm interested - as are most originalists - in the original understanding of the text.
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