D.C. Constitutional Thoughts

When writing about Rich Hasen's latest book, I noted:

The dissent in an opinion summarily upheld by the Supreme Court made an interesting argument that D.C. should have a right to representation in the House. Sen. Orin Hatch (R) supported that as part of a failed bill that would have given his state another representative. I was iffy about the constitutionality of that. I am more open to it these days.  

The argument for the constitutionality of a voting representative is a combination of overall democracy, equality, and congressional power over the district. After all, the rules for the Privileges and Immunities Clause (which applies to "states") are now applied to D.C. and federal territories. Why cannot congressional "exclusive" power to regulate D.C. include providing a voting representative? 

The argument against this is Art. 1, sec. 2, which says that the House of Representatives "shall be composed of the Members chosen every second year by the people of the several states." And, general principles of federalism, which include an assumption that only states make up voting representatives of Congress. 

A joker noted by the dissent was that during the 1790s the people of the area provided by Maryland and Virginia to be D.C. retained their right to vote for a member of the House. Thus, votes were taken away, which is generally pragmatic. Consider in comparison if the new capital was set up in a territory that was never part of a state and/or never did not have the right to vote.  This would be a difference between D.C. and a place like the Virgin Islands.

I still think that Art. I, sec. 2, (and so forth) logically was understood all of this time (since D.C. was formally the acting capital) to deny D.C. a voting member of Congress. They very well deserve one. I also think they deserve home rule. I would probably provide a supermajority congressional veto to cover the cases where there was truly a national concern. Nonetheless, I am somewhat more accepting of the idea as an academic enterprise.  

Two senators are more complicated though they do have the same amount of people as a few thinly populated states. Likewise, my ultimate conclusion is that it would also benefit as a virtual representation of other urban voters who are unfairly not evenly represented given the two-senator rule. I am wary of a "two wrongs make a right" rule in which all the rights of a state (including state immunity) are given to a small area like this. 

Nonetheless, on balance, I have grown to accept the idea. On that front, I think it is more logical that statehood is required. The Senate is especially associated with the states. The House of Representatives, for instance, has non-voting (on the floor) delegates for territories and D.C. These people are not "members" as understood in Art. 1, sec. 2. 

This all came to me because I was reading an old discussion of mine where I firmly said that the 23rd Amendment made even statehood problematic:

The District constituting the seat of Government of the United States shall appoint in such manner as the Congress may direct:

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

My argument was that this assumed that D.C. would always receive electors. If D.C. was made a state, the "seat of government" would be government buildings. Would this small area still get representatives? 

I eventually grudgingly granted the person might have been right. I think I was confused. First of all, granting the "may direct" is mandatory ("may"?), a nifty solution is just to allot the electors based on the national popular vote. It isn't necessarily, for instance, to provide a few hundred people or whatever who might still reside in the area the sole right to choose the electors. States now have joined a national compact to allot their electors based on the national popular vote.  

Second, the seat of government was previously in places like New York City and Philadelphia. The whole city was not governed by the national government. The Seat of Government Clause did provide the federal government a means to have a small area they could solely control. Nonetheless, it was not mandatory. They could have stayed in Philadelphia.

I was somewhat in all these cases basing things on general understanding. The Twenty-Third Amendment was ratified with the understanding that it would provide minimal democratic reform without changing congressional control over D.C. Some members of Congress wanted a broader amendment that would have at least given D.C. a vote in the House. 

I had concerns when people wanted to use the 25th Amendment to disqualify Trump after January 6th. The amendment to me is there to deal with presidents physically unable to do their jobs. 

I grant -- though this was the general purpose originally (as compared to Wilson's stroke and so on) -- scenarios like a presidential kidnapping would fall under "unable to discharge." 

But, would something like Trump's actions? We can argue he was unhinged. But, that seems rather open-ended. Would someone who committed treason constructively become unable to discharge their duties? I probably am being too narrow-minded here. The text is not stretched out of reasonableness to apply it that way.  

We all have things that seem "obvious" that really are not. I still find it a bit off to consider a sort of city-state like D.C. as the 51st state. But, why not? The word state is right there! Likewise, internationally, national capitals regularly are not treated in the second-class category of ours. Finally, as I was led to say, if it was "crazy" for D.C. to be a state, the same applies to North Dakota. It being large does not really change this fact.  

D.C. statehood would be a sensible approach to giving them their deserved political equality. My ideal would be a seat in the House and home rule. Nonetheless, why not statehood? It checks off the boxes and two senators (as noted) have another value. 

Finally, the argument that this is an unconstitutional idea is particularly a stretch. Congress has power over the seat of government. This doesn't mean that they have exclusive power, for all time, over a specific seat of government. The national capital was in three places. The federal government already gave back part of the original capital. 

There is no need for a constitutional amendment to expand the Supreme Court. The fact that the expansion in some fashion is motivated by partisan ends (what isn't?) does not change that. People think it is a really bad idea. That is different. OTOH, a term limit is much less likely to be constitutional. A constitutional amendment for that (quite sensible) idea is much more appropriate. 

Some constitutional ideas are open to enough debate that an amendment can be sensible The 16th Amendment is of this character, at least, at the time. An income tax is not a "direct tax." It is a tax on income. That is by definition an indirect tax. Concerns about it being a wrongful class discrimination also was wrongminded. But, we still had that 5-4 case. 

The 24th Amendment is another case. The amendment specifically applies to the federal government. Nonetheless, the Supreme Court soon held that state elections cannot use poll taxes either. The 6-3 ruling was a reasonable application of equal protection. Still, a constitutional amendment is more firm. It can not be overturned by a later Supreme Court. 

This goes to the book that was originally referenced. As I argued, I think there is a case there is a constitutional right to vote right now.  Richard Hasen does not necessarily reject that in theory. He does note that in fact a "real right to vote" does not exist. This includes how the current Supreme Court (in his view wrongly in various cases) decides. 

An argument that the Senate is unconstitutional because of equal protection principles would be rather difficult. The 17th Amendment comes after the Fifth and the Fourteenth Amendments. But, what if that amendment did not exist? It still would be a rather uphill battle. How about just the Electoral College? Is that unconstitutional on one person, one vote grounds?

At some point, using open-ended language to override clear constitutional provisions is a dubious enterprise. It is ultimately a matter of degree. 

The same can be true if done by the courts. Are all mind-altering drugs a protected "liberty" or protected by the Ninth Amendment? How about just marijuana? I think that is a reasonable argument. I would not use the blunt instrument of the courts to do so. There are ways to get closer, including the rules for scheduling marijuana.   

Okay, I am going beyond the original question. I'll end there.