I support the movement afoot to grant the District of Columbia congressional representation but the bill Lieberman, joined by Hatch, Clinton, Kerry amoung others, introduced is patently unconstitutional. While I believe in an evolution of constitutional interpretation over time one can no more interpret the constitution to allow a representative from DC than one can interpret it to allow a 25 year old president. Given the obvious constitutional concerns the supporters of this legislation advance several arguments to justify it’s constitutionality. However, these arguments are so poor I sincerly hope such prominent individuals don’t sincerely find them compelling. It’s unfortunate but giving DC congressional representation is going to take an amendment.

If you had read only the proponents of this legislation one might think the only constitutional obstacle to this legislation was this language in Article 1 Section 2 (emphasis mine)

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.

While one can reasonably argue that DC residents are “people of the several states” and if you strain a bit one could interpret the second clause as merely a restriction on how states may choose their representatives, not an implied restriction on who may have representatives. However, the subsequent passage devastates any hope of such an interpretation.

No person shall be a Representative who shall not have attained to the age of twenty five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.

Short of biting the bullet and saying that DC is a state, which would imply they were due a pair of senators as well, there is simply no way for the representative from DC to “be an inhabitant of that state in which he shall be chosen” since they won’t have been chosen in any state. Nor can one give any sensible interpretation of the requirement that representatives be apportioned among the several states that would permit DC to have a representative. Moreover, any theory allowing congress to use legislation to grant DC a representative would pose a fundamental threat to our electoral system. Either you interpret the formula for apportioning representatives demands DC be given one or forbids it but not both. Thus if congress has the power to either grant or deny representation to DC it must, on any logically consistent interpretation, somehow have the power to grant DC representation unconstrained by this formula. If congress can choose whether to grant DC 0 or 1 representatives then it would seem nothing prevents it from granting DC 200 representatives.

The justifications the proponents offer spend a lot of time arguing that the Framers surely didn’t intend to deny DC residents representation but that merely demonstrates a deep confusion about the role of intent in legal interpratation. The relevant question is whether the framers (original public understanding/whatever) intended the rule to apportion representatives only among the states, not whether they intended a particular consequence of that rule. If Blagojevich had signed an anti-corruption law the fact that he didn’t intended the law to be used against him wouldn’t pose any obstacle to prosecuting him under it. The only time we should look beyond this narrow kind of intentionality is when the legal rule is vague and requires additional preciscification which most assuredly isn’t the situation here. Observing that the alternate rule granting representation to the states and DC according to their population would have better served the framer’s ultimate aims is no more justifies the constitutionality of this legislation than pointing out that war veterans are often wise beyond their years would allow us to elect a 25 year old war veteran to the presidency in violation of the age requirement.

The proponents also try to use court precedents which establish congress’s power to treat DC as a state for the purposes of judicial jurisdiction or to apply other laws to the district to argue that congress has the power to grant the district a representative. This argument is so confused that it’s hard to make sense of it. The courts have ruled that the broad grant of authority the constitution explicitly grants congress over DC gives congress additional powers to pass legislation affecting DC that it’s enumerated powers might not allow with respect to the states. Thus even when the constitutional justification that congress uses to pass a law affecting the states fails congress can still fall back on this alternative authority. However, none of this gives congress the power to ignore specific constitutional restrictions when it comes to DC. Congress still can’t restrict free speech in the district and it can’t ignore the requirement that it apportion representatives among the several states.

Finally, what appears to be the best argument the proponents have is that when DC was first ceded to the federal government congress granted the citizens of that area the right to continue voting in their former congresional districts. At first blush this would seem to conflict with the argument here but on closer examination it’s apparent that no such conflict exists. The constitution merely guarantees that representatives be apportioned amoung the states according to a certain formula, if Maryland or Virgina decided to let citizens of Kentucky vote in their elections I see no obvious constitutional violation. Congress could likely, with the consent of some state, grant the district residents the right to vote for representatives in that state (but it’s unclear if they would count for the purposes of apportioning representatives) but unless you think that congress could dilute Wyoming’s votes by allowing any US citizen to vote in Wyoming elections the state could always revoke this privilege. Moreover, this would have the perverse consequence that DC residents couldn’t select another DC resident to represent them by the residency clause.

This is as clear as constitutional issues ever get. The politicians need to stop posturing and start trying to pass an amendment.