District of Columbia House Voting Rights Act of 2009

Floor Speech

DISTRICT OF COLUMBIA HOUSE VOTING RIGHTS ACT OF 2009 -- (Senate - February 25, 2009)

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Mr. CORNYN. Madam President, when we are sworn in to the Senate, we raise our right hand, put our left hand on the Bible, and swear to uphold the Constitution and laws of the United States. That is why I am very troubled and concerned that those of us who have taken that sacred oath to uphold the Constitution would, in fact, purport to violate the Constitution by passage of S. 160, the DC voting rights bill.

This bill, at various times, has been called the DC voting rights bill; at other times it has been called the DC statehood bill. Of course, DC is not a State, but DC would have to be a State under the Constitution to get the voting Member of the Congress for which the proponents of this legislation are calling.

By the way, if DC is a State for the purpose of creating a district for a Member of Congress, why would not DC be a State for the purpose of having two U.S. Senators? Of course, even the proponents of this legislation know that would be a bridge too far, but this is the first incremental step to considering the District of Columbia as a State entitled, they say, to a Member of Congress, as well as two Members of the Senate.

I believe this legislation is unconstitutional. There is a constitutional way to do it, but the proponents of this result have found that to be a tough row to hoe, to pass a constitutional amendment. So now they have come back trying to do it the so-called easy way but in a way that violates the Constitution and, I would say, cannot be reconciled with the oath that each of us takes.

I know it is common to say the courts will fix it. We ourselves have a duty to pass only legislation that we believe is truly constitutional. For us to say we have the votes now, as some of my colleagues have indicated, we have the votes to do it, but let's not pay attention to the constitutionality of it I think is a very serious mistake.

We all sympathize with the desire of the residents of the District of Columbia to be represented in Congress. But as I said, there are constitutional ways to do this, and this legislation is not a constitutional way to accomplish that goal.

I don't know how the constitutional limitation or, indeed, the prohibition to passing this legislation and expecting it to be enforced could be more plain. Of course, the Constitution in article I, section 2, limits House seats to States alone. The District of Columbia is not a State and, therefore, the District of Columbia may not have a House district and be represented by a voting Member of the House of Representatives.

I am not asking anybody to take my word for it. Let's just look at the text of the Constitution.

The text of the Constitution repeatedly and clearly limits representation in the House of Representatives to the States. The apportionment of Representatives is governed by section 2 of the 14th amendment, which provides: ``Representatives shall be apportioned among the several States.''

As I mentioned a moment ago, article I, section 2, of the Constitution establishes the House of Representatives and governs its membership. Each of that section's first four clauses specifies States--not cities, not the District of Columbia--as those entities that are entitled to representation in the House.

The first clause provides that Representatives are chosen ``by the People of the several States.''

The second clause provides that a Representative must be ``an inhabitant of the State in which he [or she] shall be chosen.''

The third clause says that ``each State shall have at least one Representative.''

The fourth clause specifies that ``when vacancies happen in the Representation from any State,'' the Governor of that State shall call an election.

Article I, section 4, of the U.S. Constitution provides that rules for the elections of House Members ``shall be prescribed in each State by the Legislature thereof. .....''

Just as the text of the U.S. Constitution makes plain that only States are to be represented in the House of Representatives, it is equally clear the District of Columbia is not a State for purposes of such representation.

Article I, section 8, of the Constitution specifies that the Federal Government ``District,'' the District of Columbia, was to be formed ``by Cession of particular States.'' This provision distinguishes between States and the Federal District in which we are presently located formed by cession of the States.

If that is not enough--the plain text of the Constitution--then I think all we need to do is look back at the 23rd amendment of the Constitution, where the proponents of this result actually tried to do it the right way. The 23rd amendment to the Constitution, which granted the District of Columbia Presidential electors, gives the District of Columbia the number of electors it would be entitled to if it were a State. This constitutional text presupposes that the District is not a State, as that term is used in the Constitution, for purposes of apportioning Representatives, Senators, and electors.

In short, the text of the Constitution could not be clearer, that Members of Congress are to be elected only from States and that the District of Columbia is not a State.

One may be asking why would we be having this debate 230-something years since this country was founded. It has been understood and, indeed, has been the uninterrupted practice and precedent of our Republic that people have regarded the District of Columbia not as a State and not entitled to a Member of the House. Otherwise, why would this just be coming up now? From the founding until recently, the evidence shows it was understood that a constitutional amendment would be required to give the District a voting seat in Congress. Of course, since the founding, the District has never been granted a voting seat in Congress. Representation has been apportioned in accordance with the constitutional provisions I have cited every 10 years since 1790. In other words, every 10 years we have a census, and every 10 years Congress apportions seats in accordance with these constitutional provisions, every 10 years since 1790. Never in the history of this country has a Congress or a President acted on the belief or on the theory that they had the power somehow to apportion a Representative to the District of Columbia.

Indeed, the Framers of the 23rd amendment clearly thought that granting the District Presidential electors, as I mentioned a moment ago, required a constitutional amendment. Similarly, in 1977, Congress passed a constitutional amendment that would actually have given the District residents what they seek by this act of legislation. At least at that time, the consensus of Congress was a constitutional amendment was required.

If the Framers of the 23rd amendment or the authors of the DC voting rights amendment believed they could have achieved their ends by mere legislation alone without submitting themselves to the admittedly difficult process of constitutional amendment, don't you think they would have done so? Clearly, they would have done so.

Furthermore, the Federal courts have long interpreted the word ``State'' in section 1 of the 14th amendment to exclude the District of Columbia. Thus, due process, equal protection, and other constitutional challenges to District laws, such as in the recent Heller case--that was the DC gun rights case--are brought under the Bill of Rights rather than the fourteenth amendment that would incorporate the Bill of Rights and apply them to the States.

If the District of Columbia is not a State for purposes of section 1 of the 14th amendment, it seems odd to argue it is a State for purposes of section 2 of the 14th amendment in the very next sentence of the U.S. Constitution.

The history of our first two centuries under our Constitution demonstrates an uninterrupted consensus by all three branches of Government that the District could not be represented in Congress without a constitutional amendment. Why Congress would even consider passing a piece of legislation that is going to be challenged in the courts and ultimately be decided by the U.S. Supreme Court--and I am predicting here today they will say this is an unconstitutional act by the very same Federal officials who have taken an oath to uphold and defend the laws and Constitution of the United States--why we would do this is baffling to me.

So why could anyone think a bill such as this might actually be upheld? Well, there was a clever lawyer, as there frequently is behind novel legal theories. It was not until 1991, shortly after the Constitution's bicentennial, that a clever law student first advanced the argument that Congress could create a Representative for the District of Columbia through simple legislation. Legislation purporting to do that was first introduced in 2004. This novel legal theory lacks merit, as I have argued, and cannot overcome the weight of textual and historical evidence that would all but declare that this bill is unconstitutional.

Supporters of this theory cite the District clause of the Constitution that gives Congress power to ``exercise exclusive legislation in all cases whatsoever'' over the District. Because the District is not a State, it doesn't have a State legislature, and so Congress is given that authority under the Constitution. This plenary power, it is argued, gives Congress unfettered power to determine the District's representation in Congress.

But this power cannot be used in any kind of logical way to vitiate the carefully crafted apportionment of representation elsewhere in the four corners of the Constitution. By the logic of the act's supporters, Congress would exercise unlimited plenary power to repeal freedom of speech in the District or give the District 436 representatives in the House and 101 Senators.

The absurdity of this argument is highlighted by the fact this District clause goes on to give Congress the same plenary power--``Like Authority''--over Federal institutions such as, ``Forts, Magazines, Arsenals, dock- Yards, and other needful Buildings,'' in the quaint language of the Constitution. But surely this does not mean that on the basis of the District clause Congress can grant a vote in Congress to a federal dockyard or an arsenal. It doesn't make any sense.

Congress should not adopt an overly aggressive or overly expansive role of its powers under one section of the Constitution that allows it to violate--somehow magically--the clear language and intent of other provisions of the same Constitution. Like all of Congress's powers, the District clause is limited by the context and the rest of the same Constitution.

As the Supreme Court of the United States first noted back in the early 19th century in Marbury v. Madison, and has continually affirmed throughout our history, if Congress could alter the Constitution's meaning through mere legislation, then the Constitution would cease to be ``superior, paramount law, unchangeable by ordinary means.''

On another note, having argued from a historical perspective, and from the text of the Constitution the historical practice, the political impact of what the Senate is being asked to do--aside from these constitutional concerns--we need to look at the impact of this legislation on the size of congressional delegations in all other States after the 2010 census and beyond.

As I noted earlier, every 10 years we recalculate how many seats will be available to the U.S. House of Representatives from each State, since there is a fixed number. Of course now it is 435. Because of that, every 10 years some States are winners and some States are losers. High population growth States, such as my State--Texas--are likely to get as many as three new congressional seats after the next census. This bill would change the list of winners and losers after the 2010 census and for every census thereafter.

Think about this, colleagues: Some States clearly are going to lose a seat or two in Congress after the 2010 census. Just as my State will gain up to three seats, there will be other States that will lose a seat because of population shifts in our country. There are other States that are not clear winners or clear losers but are on the bubble. I ask my colleagues to consider what they are doing to the interests of their State before they vote on this bill. It could be that by voting for this legislation some Senators will be putting their States on the bubble now and for decades to come.

Now, what does that mean? Well, let me ask this question: Do you want to explain to your constituents that your State must lose a seat after the census so the District of Columbia can gain a seat by this legislation? Are Senators going to vote for a bill that might mean their State would receive one less congressional district after the next census, because they want the District to have one? Do you want to explain to your constituents that you would have had another seat after the census, but instead you are going to have the same number and the District of Columbia is going to grow by an additional seat as a result of your vote on this legislation?

The increase in House membership from 435 to 437 disguises this issue, but only if you are not paying very close attention. Think about this: If the membership of the House had been 437 after the 2000 census, which States would hold those two seats today? The answer would be Utah and New York. So New York is a big loser in this bill because we are expanding membership in the House without giving New York the seat its people deserve based on the current law.

We don't know which State will be the biggest loser after 2010. If the current census projection holds, it is likely to be New Jersey or Oregon. The fact is we don't know which State would be entitled to that 437th seat if it weren't awarded to the District of Columbia by this legislation. But we do know this: There will be winners and there will be losers. And there will be a new loser every 10 years after this bill passes if it is not struck down, as I predict it will be, by the U.S. Supreme Court.

The ultimate impact of this bill on our representation in the House of Representatives is unclear, but I believe the bill's lack of constitutional foundation is clear. For that reason, I believe Senator McCain's constitutional point of order should be sustained.

I will close where I started: Each of us, as U.S. Senators, has taken a sacred oath to uphold the laws and Constitution of the United States. So how, under any interpretation, would we vote to pass a law that is so clearly unconstitutional? Why is it that Congress would totally abdicate its responsibility in considering legislation to determine whether it is constitutional or not and to kick that responsibility over to the Federal courts?

I believe all of us--Members of the House, Members of the Senate, Federal judges, the President of the United States--have a responsibility to uphold the laws and the Constitution of the United States. And if this Senate passes this clearly unconstitutional legislation, it will have violated its sacred oath to uphold the Constitution, in my humble view.

I yield the floor, and I suggest the absence of a quorum.

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