Ranking Member Smith: Mr. Chairman, the Judiciary Committee has a special responsibility to act as a guardian of the Constitution. The committee’s jurisdiction and that of each of its five standing committees are grounded in subjects specifically cited in the Constitution. These subjects include individual constitutional rights, intellectual property, the federal courts, bankruptcy, national defense, criminal law, and immigration.
If the Judiciary Committee will not uphold constitutional principles, then who will? And if the Judiciary Committee approves legislation that may violate the Constitution, what does that say about our responsibility as guardians of the Constitution?
In 1978, the House Judiciary Committee got it right when it considered a constitutional amendment that would have provided D.C. two Senators and a Representative.
The House Judiciary Committee—under the leadership of Democratic Chairman Peter Rodino—approved a constitutional amendment that would give D.C. residents equal representation in Congress.
The report accompanying that constitutional amendment stated: “If the citizens of the District are to have voting representation in the Congress, a constitutional amendment is essential; statutory action alone will not suffice.”
However, that amendment failed to get the approval of three-quarters of the States over seven years; in fact, only 16 states voted to ratify the amendment.
Since that time, the Constitution has not changed. But, unfortunately, the Majority is pursuing a constitutionally suspect bill when constitutional alternatives are available.
In 2000, a federal three-judge panel in D.C. stated “We conclude from our analysis of the text that the Constitution does not contemplate that the District may serve as a state for purposes of the apportionment of congressional representatives.” The Supreme Court affirmed that decision. So, not only does the text of the Constitution make the bill before us unconstitutional, but so does a ruling by the Supreme Court handed down less than ten years ago.
Yet a constitutional alternative is readily available. It’s called retrocession, a process in which the current residents of D.C. would become residents of Maryland and enjoy representation as citizens of that state. Not only is retrocession constitutional, it’s a better deal for D.C. residents.
Under today’s proposal, the District will be granted a vote in the House of Representatives. Residents will not, however, have representation in the Senate. A retrocession proposal gives D.C. residents representation in both Houses of Congress.
Some supporters of H.R. 157 point to the statements of a few lawyers to bolster their case. But lawyers can always be found who will argue on behalf of their paying client.
Supporters of this bill claim Congress has the authority to enact it under the so-called “District Clause.”
That very clause also makes clear that D.C. is not a State – rather, it is a specially-created “District.” The Constitution clearly states “the House of Representatives shall be composed of Members chosen every second year by the people of the Several States ...” Since D.C. is not a State, it cannot have a voting Member in the House.
The Founders understood the Constitution to deny Congressional representation to D.C. They even sought to address it. At the New York Constitutional Convention, Alexander Hamilton offered an amendment to the proposed Constitution that would have allowed D.C. residents to secure representation in Congress once they grew to a reasonable size. But that amendment to the Constitution was rejected.
The Congressional Research Service’s analysis concludes that H.R. 157 is unconstitutional, stating that the “case law that does exist would seem to indicate that not only is the District of Columbia not a ‘state’ for purposes of representation, but that congressional power over the District of Columbia does not represent a sufficient power to grant congressional representation.”
According to Jonathan Turley of the George Washington School of Law—often a Democratic witness—this proposal is “the most premeditated unconstitutional act by Congress in decades.”
At the end of the day, District residents will be no closer in their quest for Congressional representation.
Meanwhile, the Judiciary Committee will have tarnished its reputation as a guardian of the Constitution.
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