The Senate Homeland Security and Government Affairs Committee voted yesterday to send to the Senate floor unconstitutional legislation that would give the District of Columbia a full seat in the House of Representatives.
Like the nearly identical proposal that died in the Senate two years ago, the District of Columbia Voting Rights Act of 2009 would give a House seat to the District and create another seat that would go to Utah. This seat would belong to Utah only temporarily, however, and would later be awarded to whichever state merits it following the 2010 Census.
The committee’s debate appropriately focused on the proposal’s constitutionality (watch a video of the debate here, beginning at 30:30). Since the Constitution limits representation in the House of Representatives and the Senate to states, and the District of Columbia is not a state, legislation alone cannot give the District a House seat.
In their remarks, several lawmakers expressed reservations about the constitutionality of the measure. “The constitutionality of this legislation is a close call,” Sen. Susan Collins (R-ME) said.
But Collins nevertheless urged passage. “I believed then, as I do now, that this question is best resolved by the courts and not by this committee.” In other words, it’s not our business in Congress to vote against legislation based on constitutional scruples. It’s the job of the courts, not the Congress, to uphold the Constitution. (Nevermind that pesky oath of office.)
Sen. George Voinovich (R-OH) went so far as to say that passing the buck to the Supreme Court is a point in favor of the legislation. He proposed (42:45 in the committee video) that “those who feel it is unconstitutional” should favor the bill’s passage, “allow[ing] it to reach the Supreme Court. They could decide whether it is constitutional or not.”
Sen. John McCain (R-AZ) objected to this abdication of Congress’ responsibility, stating (at 46:40) that he has “never operated on the premise [of] let’s pass it and find out whether it’s constitutional or not. It has not been the way I have shaped my political philosophy in action.”
Senator McCain is right. As James Madison explained to the First Congress, “[I]t is incontrovertibly of as much importance to this branch of the Government as to any other, that the Constitution should be preserved entire.” Each branch of government, then, has an equal power and obligation to interpret and uphold the Constitution. But it’s a lot easier for those in Congress to push that responsibility onto the courts, so that’s the option they typically select.
Instead of kicking the constitutional can down the road, the Senate might consider proposing an amendment to the Constitution. This would resolve the problem the legislation addresses, without violating the Constitution.
