Is D.C. House Vote Constitutional? That’s Not for Jason Chaffetz to Decide
In yesterday's Loose Lips Daily, LL referred icily to the anti-District voting rights stance of Utah Rep. Jason Chaffetz, who holds firmly that the D.C. House Voting Rights Act is unconstitutional. LL said the new, famously office-dwelling congressman is "playing armchair constitutional expert," seeing as the man holds no law degree and spent his professional career as a political aide and public-relations man.
LL's comment earned him this comment from "Trenton," who seems to run a conservative blog in Utah: "While your cheap shot at Rep. Jason Chaffetz might make you feel better, it only tells me you have no serious argument to make in that debate."
You're right, Trenton: LL has no serious argument to make in that debate—just like Jason Chaffetz shouldn't. You see, LL holds no law degree and has spent his professional career as a smartass alt-weekly reporter.
LL is perfectly willing to stipulate that there are very serious constitutional questions involved with the DCHVRA. Highly respected legal scholars have taken differing, equally well-reasoned positions—in some cases in ways that oppose their political interests—e.g., liberal law prof Jonathan Turley says DCHVRA is unconstitutional; conservative law prof Viet Dinh says its perfectly constitutional.
Here's the beautiful thing about the United States of America: We have an entire branch of government devoted to sorting out these questions. And it's not Congress.
Nope—Congress' job isn't to sort out matters of constitutionality. That's for the federal judiciary to decide (thank you, John Marshall). Congress' job is to conduct oversight of the federal government and to pass legislation in keeping with its principles and policy objectives. That's not to say Congress should go legislating willy-nilly where there's already well-settled law—say, by passing a flag-burning ban—but a D.C. House vote is not a well-settled situation.
If Congress believes as a matter of principle and policy that the nearly 600,000 residents of the District of Columbia should have a vote in Congress, it should legislate thusly. If it doesn't, that's fine—but members like Chaffetz (and there's plenty of them on both sides of the aisle) shouldn't hide behind the trope that such a move wouldn't be constitutional.
That's not what you're here to decide, congressman—you need to decide whether D.C. deserves to be afforded a vote, with Utah gaining one in the process. If you think that leaving the federal district disenfranchised is a worthy policy goal, say so. But leave the questions of constitutionality to the courts.
5:16 pm
thank you, thank you, thank you, mike. i think i've been making this same argument for years, but you just made it about as succinct as it can get.
vote yes, or vote no. but don't play judge. if you wanna do that, get appointed to the judicial branch...
5:48 pm
I'm in favor of the bill, but I absolutely believe that members of Congress have a responsibility not to vote for legislation they believe is unconstitutional. Certainly the Supreme Court makes the ultimate determination, but legislators are supposed to adhere to the limits in the Constitution when writing laws as well.
6:03 pm
KCinDC is absolutely right. Everyone in the legislature vows to uphold the Constitution. The Supreme Court is the final arbiter, but if you think something is unconstitutional, that's a valid reason to vote against it.
6:31 pm
Yes, to vote for something even though you believe it violates the Constitution, I think, would be a violation of one's oath and duty. Please let's not have a system where the Congress and President make and enforce laws with the thought, "let the courts determine if it's legal or not."
7:05 pm
Mr.DeBonis, I for one am glad Rep. Chaffetz is not an attorney. We have too many in working in D.C.
That said, you think Utah doesn't have any attorneys?
You can't even get local DC constitutional expert attorneys to agree on this one.
It is obvious for 150 years congress, full of attorneys, didn't think this bill or something like it was legal.
That is why they tried to "bribe" the republicans with a seat that Utah should have got in 2000.
That is why part of Virginia ended up with a large chunk of DC in the mid 1800's. That is why the rest of the residential part of DC should go to Maryland.
Utah will get the seat the next census anyway. We don't need no bribe, and you don't need to be an attorney to read the constitution.
Chaffetz wants DC to get to vote. Through a state like Maryland like everyone else.
7:14 pm
Not a bad point but completely wrong. If a legislator thinks a law is not constitutional, he should absolutely vote against it, even if he thinks it is a decent idea. That is part of their responsibility when passing laws! You completely misunderstand the role of Congress, both historically and by the laws and oaths they take.
9:32 pm
"Nope—Congress’ job isn’t to sort out matters of constitutionality. "
So if Congress' job is not to "sort out matters of Constitutionality" why do they swear to UPHOLD AND DEFEND the Constitution of the United States of America? They are Constitutionally required to make laws which means that they are CONSTITUTIONALLY REQUIRED to sort out matters of Constitutionality in order to write the laws!
A Constitutional Civics refresher class might be in order for you and your LL.
LL
10:55 pm
Excellent analysis, Mike. Law school or no, you framed the issue perfectly. Legislatures vote; courts decide. Vote however you choose, & let the courts decide if voting rights for DC are constitutional.
Legislators voting against a bill due to constitutionality concerns makes no sense - if you're against it, then vote no. If you're in favor, but have constitutionality questions, either seek a declaratory judgment or vote yes & let it be tested in the courts.
12:37 am
It is the duty of those who we send to Congress to find out what is constitutional and what is not. It is their duty to vote according to what they understand to be constitutional. If they are uninformed or need further understanding, it is their duty to then research the issue.
I wish we had hundreds in Congress like Chaffetz who WON'T abdicate their responsibilities and wait for another branch determine constitutionality. Judicial review should be reserved for REAL questions and difficulties, not act in the capacity of taking over the job of Congress as well. The framers of our government NEVER intended that!
1:17 am
I found this worth posting:
"When Rep. Chaffetz was sworn in as a United States Representative, he took an oath to uphold the Constitution.
Mr. DeBonis' assertion that it isn't the role of the Congress to decide the constitutionality of a piece of legislation is simply preposterous. It's their job.
The Supreme Court gave themselves the precedent of Judicial Review 200 years ago in Marbury vs. Madison. It isn't implicit in the Constitution."
9:51 am
Our nation's capitol was never to become a State! Our Founding Father's purposely chose for DC to be inbetween two states so that no one state would have more power than another. I don't buy for one second that people in the district are not represented. They still have the right to vote for a President, and they get a Representative in Congress. They also have their local government, whom the citizens of the District elected. If the people that live in the District want voting Representation then they can move 5 miles to the North or South, (Virginia or Maryland) and receive representation.
Having grown up in Utah my whole life, I do want Utah to have it's 4th Congressional Seat. However, that seat is something that rightfully belonged to us from the 2000 census, that was wrongly denied to us. DC should not take advantage of this situation to accomplish a goal that our Founding Fathers would completely reject!
10:58 am
Sad and pathetic that Eleanor HM would even think that winning this bill is any kind of victory. What Congress gives, it can take away next time there is a different majority. It can be taken away by a court ruling. DC's real, full representation will come only by way of a constitutional amendment granting it equal representation with the states. But who want to fight THAT difficult, uphill battle?
3:06 pm
So let me get this straight...one can vote however on chooses, but they aren't allowed to use Constitutional muster as reason for their choice? I'm 100% in favor of DC statehood, and the fact of the matter is that the DC Voting Rights Bill is HIGHLY suspect Constitutionally speaking (it might be Constitutional, but it certainly raises many strong arguments for its unconstitutionality), but you sound foolish when you say House reps shouldn't weigh in on the Constitutionality of a bill prior to voting on it. You should be happy Congress is actually paying attention to what it might end up voting on.
8:28 pm
Not considering the constitution when writing legislation is absurd, though admittedly it happens all the time in Congress.
Suppose someone proposed a bill requiring all speech to be approved by the government. Wouldn't it be appropriate for a congressman to argue that the bill is unconstitutional?
7:38 pm
Mike,
Your claim is absolutely absurd. To imagine that Congress should not be the ones to judge what legislation is Constitutional and which isn't is a gross and profound misunderstanding of our system of government.
I suggest you study Marbury v. Madison along with the circumstances surrounding it. You might discover that John Marshall decided that the Court should have the power to review legislation, without any reference to the Constitution whatsoever.
7:59 pm
"6. That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good."
Virginia Declaration of Rights, June, 1776
Author: George Mason, elder of mentor to Jefferson and Madison, and promoter of the Bill of Rights (first Ten Amendments to the Constitution)
Madison, Mason, et. al recommended " a frequent recurrence to fundamental principles". The time for debate has long passed (it has been over twwo centuries).
If the current law is deemed unconstitutional, it is incumbent on residents of the fifty states to correct this deficiency in the Constitution . DC residents cannot. It is not their Congress -- they have no vote and precious little voice (and are outnumbered roughly 600 to one); it is not their court system; they have had no say in the composition of the Courts since 1801; it is hardly even their Consitution anymore, since they have had no say in Amendments 12-27. But it is still their Country (they are the same posterity for whom the Founders pledged Lives, Fortunes and Sacred Honor to secure Liberty) and they need not move ANYWHERE to claim their inailienable (innate, inherent, intrinsic) rights.
1:39 pm
Hmmmm. Problem with this logic: Every elected leader is sworn to uphold and defend the Constitution of the United States. Not just the Supreme Court.
See? http://www.senate.gov/artandhistory/history/common/briefing/Oath_Office.htm
'The Constitution contains an oath of office only for the president. For other officials, including members of Congress, that document specifies only that they "shall be bound by Oath or Affirmation to support this constitution."'
Hmmm. So, just maybe, members of Congress should consider constitutionality before voting in favor of a bill.
5:53 pm
Unfortunately with enough litigation, our federal judiciary can make the case that a pile of crap is not actually a pile of crap. Is it their decision to make… yes it is. Does it mean they are right when they make the decision? Not necessarily. If they were always right than African Americans would still be treated as 3/5ths a person and segregation would be law of the land.. Some yahoo with a law degree cannot force all of us lowlife commoners to give up our common sense. The letter of the law as it is written in the constitution does not give congress the right to change its composition on the account that they think DC should be treated like a state when it is not.
4:31 pm
Mr. DeBonis,
YOU ARE CLUELESS!!!
I agree with a previous comment that indicated:
"The Supreme Court gave themselves the precedent of Judicial Review 200 years ago in Marbury vs. Madison. It isn’t implicit in the Constitution.”
SN
5:20 pm
You never can be too careful with a subject like this people need to take notice.