DC VOTING RIGHTS ACT -- (Senate - September 17, 2007)
Mr. McCONNELL. Mr. President, on a hot September afternoon in 1787, 55 men put away their quills after 4 months of hard work in the Pennsylvania statehouse. The U.S. Constitution was finally finished. One of the delegates read it aloud, and then the oldest man in the room rose to speak.
Benjamin Franklin had seen a lot in his 81 years. Now, pointing to an image of the Sun that was painted onto the back of a chair in the convention hall, he saw something else. That Sun, he said, was rising. It was a hopeful metaphor which was meant to put the nervous delegates at ease. When Franklin finished speaking, everyone left the stuffy convention hall and retired to a local tavern for dinner. And then they all went home.
Two hundred twenty years later to the day, we remember the courage and the wisdom of those 55. And we recommit ourselves to the task of upholding and defending the wise and durable document they wrote. As a political document, the U.S. Constitution is without equal in the history of man. And as its political children, we consider it an honor and a sacred duty to defend it. Doing so today does not involve the risk to life and property that it did back then. But it does require a constant vigilance against anything that would erode it, especially from within the government itself. And this is why I rise.
The senior Senator from West Virginia does his country a great service every time he reminds us of the value and the binding nature of the Constitution. It was he who designated by law 3 years ago that September 17 should be recognized and celebrated as Constitution Day. And so I think it is rather fitting that I should fulfill my duty this week as a guardian of that document by voting against a motion to proceed to a bill that constitutes, in my view, a fundamental assault against it.
The bill itself would grant congressional representation to residents of the District of Columbia. And let me make something very clear to my colleagues, to the citizens of my State, and to the rest of the country from the outset: my opposition should in no way be interpreted as opposition to the enfranchisement of any constitutionally eligible American. As the lead Senate Republican cosponsor of the Help America Vote Act, my commitment to the franchise rights of Americans should be clear to everyone in this Chamber.
I have long fought for making it easier to vote and harder to cheat. The right to vote is fundamental, and I will fight any attempt to dilute or impede that right.
My opposition to this bill rests instead on a single all-important fact: it is clearly and unambiguously unconstitutional. It contravenes what the Framers wrote, what they intended, what the courts have always held, and the way Congress has always acted in the past. And to vote for it would violate our oath of office, in which we solemnly swear to support and defend the Constitution. If the residents of the District are to get a member for themselves, they have a remedy: amend the Constitution. But the Members of this body derive their authority from the Constitution. We are its servants and guardians. And we have no authority to change it on our own.
Amending the Constitution would not be necessary, of course, if the framers had intended the District to be treated as a State for purposes of representation. But they clearly did not. As article 1, section 2, states:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.
That is not ambiguous. Every resident of a State, therefore, is entitled under the Constitution to congressional representation. Yet no similar representation is accorded to the residents of areas that are not so designated. One of these areas, in particular, is mentioned explicitly later on in the same article.
In article 1, section 8, the so-called District clause, the Framers gave Congress power over a new Federal district and any other Federal lands purchased by the Federal Government. Article 1, section 8 states:
Congress shall have power to lay and collect taxes over such District as may, by cession of particular states, and the acceptance of Congress, become the Seat of Government of the United States and to exercise like authority over all places purchased by the consent of the legislature .....
The Framers clearly envisioned the Federal city as a separate entity from the States, as an entity they themselves would control. James Madison, the Constitution's primary author, explained why in Federalist 43. The seat of government couldn't be in one of the states, he said, because of the potential benefits that would accrue to that State, either material or in reputation, as a result of that distinction.
Moreover, lawmakers themselves should not be dependent on the good favor of any one State or its residents to carry out their business. A third reason, perhaps even more relevant in a time of terrorist threats, is that the District's independence would allow it to relocate if need be.
So the Framers spelled it out explicitly in the original text. They also explained what they meant. The District of Columbia has been many things: a Federal enclave, a Federal city, even, under President Johnson, a Federal agency. But the District of Columbia has never been a State. And for this reason, according to the Constitution, it does not get congressional representation.
This is not a novel interpretation of the text. The historical record is full of proof that Congress and the courts have always interpreted the Constitution as denying congressional representation to residents of the Federal district. When Congress decided to change the way senators are elected in the early 1900s, they did it the right way, through the amendment process. And consistent with article 1, section 2, this amendment understands as eligible for representation only those Americans who reside in a State.
Half a century later, in 1961, the 23rd amendment was ratified, granting residents of the District the right to vote in Presidential elections. It states:
The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct .....
Let me stop right there. The District, you will notice, is referred to here yet again not as a State but as, in the words of the amendment, ``the seat of government.'' It continues:
A number of electors of President and Vice President equal to the whole number of senators and representatives in Congress to which the District would be entitled if it were a state .....
The language here could not be more explicit: to which the District would be entitled, meaning of course that it is not entitled, and if it were a State, meaning, or course, that it is not a State.
Remember the words of article I, section 2:
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.
This an old debate. It is as old as the Constitution itself. The Framers were fully aware of the implications of article I, section 2 for the residents of the Federal district. Indeed, one of its original authors, Alexander Hamilton, tried but failed to include congressional representation for residents of the Capital city. The rejection of this proposal by the delegates of the Constitutional Convention clearly shows they knew what they were denying residents of the Federal city.
And again, in the late seventies, Congress passed and the President signed a constitutional amendment giving the District congressional representation. After only 16 States ratified it, it failed. Professor Jonathan Turley of the George Washington Law School gave a valuable history lesson on this issue to the House Judiciary Committee. I commend to my colleagues his testimony on H.R. 1433 on March 14, 2007.
Over the years, many other ideas for securing representation for residents of the District have been proposed. Some have proposed what's known as semi-retrocession, or counting District residents as citizens of Maryland for voting purposes. Another idea was full retrocession, which would simply transfer most of the District to Maryland, just as the western half of the original Federal city was transferred back to Virginia before the Civil War. I will let others argue the relative merits of these other remedies. But let me say it again: the remedy we are currently considering is no remedy at all, according to Constitution. The only way to change the Constitution is to amend it.
The process for doing so is clear. We have done it 27 times. Article V states:
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states .....
A two-thirds vote in both Houses, ratified by three-fourths of the States. That is the remedy. That is the method the Framers outlined. That is the one we have used every other time we have needed to amend. Any other method to change the Constitution would be, by definition, unconstitutional, which is of course out of the question. The only real question here is whether giving residents of the Federal district the right to vote is a constitutional issue at all. If it isn't, we could confer the right by statute, on our own. If it is, we can't. And in my view, there's no question in looking at the words, the intent of the writers, and the traditional interpretation of the courts and the Congress.
I welcome this debate, because it clarifies the meaning of the Constitution and our lack of authority to change its meaning on our own. If there is a problem, we have a remedy. It may not be the remedy we want. It may not be quick. But it is the remedy we have got. And it is proven to be the most durable one over the years. Indeed, if we were to vote in favor of this bill today, the constitutional tangle we would find ourselves in would throw every subsequent vote decided by the new Members into serious jeopardy.
A Presidential election decided by one or two electoral votes would be nearly impossible to resolve. Better to grant this right on the bedrock of an amendment, as we have always done in the past, beyond the reach of litigators.
If we want to give the residents representation, then we should begin the amendment process. But we cannot, we must not, circumvent the Constitution by arrogating powers to ourselves that it does not give us itself. To do so would be to undermine the law from which all others in this nation derive, the one Lincoln once referred to as the only safeguard of our liberties.
The purpose of the Constitution is to limit, not expand powers. We must always be careful in tampering with that principle. This is the wisdom of the amendment process. Despite the clearly good intentions of the authors of this bill, let's not turn away from a principle that has served us well in remedying injustice in the past.
The question here is not the end we seek, but the means by which it is achieved. And any other means than the one outlined in the Constitution would be by definition unconstitutional.
Let's do what we have always done and follow the Constitution to achieve our good ends. Otherwise, the achievement itself would be unconstitutional. And the supreme law cannot be at war with itself.
The Framers have spoken, prior congresses have spoken, the citizens of the United States have spoken. Now it is time for us, on this Constitution Day, to see the text, listen to these voices, and vote, as we have all sworn, ``to support and defend the Constitution of the United States of America.''
Then we will be able to say with Franklin that the Sun, which lights the way for all of our work in this Chamber, continues even today to rise.
Mr. President, I yield the floor.