Wednesday, February 25, 2009

DC Voting Rights are UNCONSTITUTIONAL

This is quite simple, the Constitution of the United States (aka the Supreme Law of the Land) states:

"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."

The District of Columbia is not a State, nor is it a part of a State. James Madison expounded the need for a federal district on January 23, 1788, in his "Federalist No. 43", section #2, arguing that the national capital needed to be distinct from the states in order to provide for its own maintenance and safety.

The problem of the "disenfranchisement" of District residents is not new (although, I would argue that no one there has been disenfranchised--those born there have never had representation in Congress and those who move there do so on their own accord), ever since the "Organic Act of 1801" which officially ceded the land to the federal government and disenfranchising the residents of the District, there have been efforts to remedy this. Most efforts revolve around "retrocession".

The City of Alexandria used to be the southern county of the District, but was retroceded to Virginia after the people of the city began to request that Virginia ask for the territory back in the 1840s. In February 1846, the Virginia General Assembly officially agreed to accept retrocession if approved by Congress and in July, the Congress retroceded the land south of the Potomac back to Virginia.

In my opinion, it makes sense to retrocede the majority of the District back to Maryland with the exception of the Federal Triangle, the Mall, and the Navy Yard. These areas have no residences (with the exception of the White House--and the President and his family retain their citizenship in their home State). The problem is that Maryland does not want to do this. Without Maryland's cooperation, this will not happen.

So that leaves three options (at least if one believes that the Constitution matters).

The first, make Washington a State (New Columbia?)...this is not an easy or clear process. There are several portential problems...
Statehood usually comes from territories or colonies petitioning to become a State; however, DC is not a territory, nor is it a colony, nor is it an area which could be annexed. Second, the land was ceded by Maryland for a particular purpose, so there may be legal ramifications in this pertaining to the territory if it is no longer to be used for this purpose. Regardless, there would need to remain a portion of the area as a Federal District as mentioned above.

The second, amend the Constitution.
Unlikely to be ratified though. You need the support of 2/3 of both houses of Congress to propose the amendment (or 2/3 of the States to call a Constitutional Convention). This is unlikely since New Columbia would be extremely supportive of the Democrat Party...you will never get 290 votes in the house nor 67 votes in the Senate for the amendment. Neither would 34 States call to convene a Constitutional Convention for this purpose (can you imagine the likes of Senators Clinton, Kennedy, and Byrd attempting to write a new Constitution--we have no Madison, no Franklin, no Washington, et al in our midst). Even on the off chance that such an amendment could be proposed, there is no way 38 States would ratify it as it weakens their power.

The third and most likely option is the restoration of voting rights by Congressional act. In 2004, Rep. Dana Rohrabacher [R-CA] proposed the "District of Columbia Voting Rights Restoration Act" (H.R. 3709). This act would have treated the residents of the District as residents of Maryland for the purposes of Congressional representation. Maryland's congressional delegation would then be apportioned accordingly to include the population of the District. At first blush, this seems un-Constitutional as well; however, from the foundation of the District in 1790 until the passage of the Organic Act of 1801, citizens living in D.C. continued to vote for members of Congress in Maryland or Virginia; legal scholars therefore propose that the Congress has the power to restore those voting rights while maintaining the integrity of the federal district.

This seems simple enough, doesn't it?

8 comments:

Anonymous said...

I can see the basis for the congressional challenges to DC voting rights but I ask, based on your opposition - Then I take it, as a virtual libertarian, you are in favor of making DC residents federal-tax-free in lieu of congressional voting rights?

After all, a primary founding issue for our nation was 'no taxation without representation'.

btw - wasn’t Arlington county the part of the District that Virginia took away rather than Alexandria? And the word renege comes to mind.

Jim-the Classical Liberal (Views from the Right) said...

Harold...um, no...I would argue that since they have chosen to live there and this situation is known (or should be), they are chosing to be in this situation. If they do not wish to chose it, they may live across the border in MD or VA.

As for Alexandria, I stand corrected, I meant the City of Arlington and the County of Arlington...

Anonymous said...

I believe there is no city of Arlington, just the county.

So you quote the Federalist papers and the principles for the founding of our country when it is convenient to your argument but ignore such founding principles when it doesn't it appears. According to my read of the classical liberalism on wikipedia you referenced, would suggest that you would object to unfair taxation. Your sense of civil and social justice strikes me as a bit skewed. Would you feel the same way about these topics if the District residents typically elected republican politicians?

Since the founding documents did not allow women or black men to vote, do you think those changes were also inappropriate? We need not remain stuck in the rules of 1789 when injustice or unfairness becomes known.

Jim-the Classical Liberal (Views from the Right) said...

OK...one more correction, I was right, the City of Alexandria was retroceded...it was also the County of Alexandria (which is modern-day Arlington County). It was not a taking, it was a request (if Congress says yes, we will take it) that was Ok'd by the Congress then also agreed to by the voters of the city in a referendum.

See the following link:
http://en.wikipedia.org/wiki/District_of_Columbia_retrocession

As for your next point...

First, I do not cherry pick the founding documents nor the Federalist Papers...

Second, I do object to unfair taxation, but I also embrace the people's right to vote with their feet. If you do not want to live in such a situation as exists in DC, then DO NOT LIVE THERE! No one forced them to move there. As I said, you may have had a point in 1801 with the Organic Act which actually did disenfranchise District residents...but there exists no one whose franchise has been removed at the present time...

As for the snarky comment about the franchise for women and African Americans...there exists in the Constitution a method for changing it. These amendments then become part of the Supreme Law of the Land. Of course I support them as they were proposed with 2/3 support from both houses of Congress and were ratified by 3/4 of the States. The rules are the rules...please do not say I do not support changing them, there is a method, use it...

I also proposed a way out that would not need the super-majorities of the amendment process. Before the Organic Act, District residents did have the franchise through the State in which there territory derived. Since this existed for 11 years from the founding of the District in 1790 to 1801, there is precedent.

Jim-the Classical Liberal (Views from the Right) said...

Sorry, here is the link for above: Click here for info on retrocession

Anonymous said...

I agree there is a right to vote with the feet but I also feel that it should not be necessary. Why must I surrender my home and move away to achieve justice and equity. That is the reason that our fore-bearers came to the American shores so we would never again need to abandon our homes to have a fair government.

I think we will need to "agree to disagree" because I believe you do cherry pick the documents you choose to quote and honor.

If you honestly object to unfair taxation and if you honestly believe that our country was founded on the principle of no taxation without representation (among many principles) then I don't understand how you can so readily dismiss that with the expectation that 500,000+ people should abandon their homes and move to MD and VA to embrace a god-awful commute.

I seem to recall that you wailed about your miserably long commute when you felt you needed to get home quickly in case your wife delivered a baby during business hours. Wouldn't that have been much easier if you lived within a couple of miles of your office?

Jodi said...

We have had a similar discussion about people moving to give themselves a better life. While I agree that we should be able to pick ourselves up by the bootstraps and do what's needed to make our lives better, socio-economically that's easy for us (meaning you and me) to say. Not all people have genuine leather straps with which to pull. Often it's a shoestring.
I'm with Harold on this one.

Anonymous said...

Harold,

I assume you also fully support the people with million dollar homes on the florida coast that every hurricane get federal aid to rebuild?

The ancestors you refer to who moved her did walk away from homes and families, sometimes with thousands of years of history in the "mother land" to move here for better OPPORTUNITY.

Hmmm... It was necessary then and it should still be necessary. How does that old quote go "all evil needs to win is for good men to decide they shouldn't have to actually fight against it"


Hmmm... Your argument seems weak and based on convenience and not on righting injustice.

Jodi,

People have to find the strength to pull their bootstraps. It has nothing to do with what we are given, but with what we are made of.

Even the great Obama can't give everyone the gumption to go out and work hard and lift themselves by their bootstraps. That has a different source.

David