The problem of Congressional representation for the District of Columbia, III

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Congressional representation for the District of Columbia haunts public discouse once again.1 Bench Memos' Matthew Franck can scarcely contain his contempt for the WaPo's risible assertion that "opponents of D.C. voting rights have latched onto the only argument they can make with a straight face -- that the bill is unconstitutional."

So far as Starr, Wald and Dyn's arguments that such a proposal is constitutional - I tackled those arguments at considerable length here back in December.

Still: What a poisonous idea such a statement represents - that the constitutionality of an idea is the last resort instead of a threshold question. True enough, "[i]t's hard" -- although not impossible -- "to make a case for depriving people of a voice in Congress when they pay federal taxes, serve on federal juries and send family members off to war." But even if that case was made, it would be meaningless: It simply isn't relevant to the debate that it's unfair to deny the District Congressional representation, any more than the relevant question about McCain-Feingold or the Independent Counsel law was or is whether they're good ideas.

In all matters where Congress proposes action, "[t]he Constitutional question is a threshold question before the normative question can be reached; '[t]he United States is entirely a creature of the Constitution. Its power and authority have no other source. It can only act in accordance with all the limitations imposed by the Constitution.'"2

The WaPo complains that it's "pretty embarrassing that the United States, while preaching democracy to the rest of the world, remains the only democratic country where people in the capital city are without representation." On the contrary: I think that by insisting that the words of our Constitution have meaning, we are setting a wonderful example of the principles of limited government, where we reject the idea that "a need creates a power [to act]," where we reject the poisonous idea that "'if a job has to be done to meet the needs of the people, and no one else can do it, then it is a proper function of the federal government,'"3 where we reject "the first principle of totalitarianism: that the state is competent to do all things and is limited in what it actually does only by the will of those who control the state."4

Finally, I of course join Frank's criticism of the WaPs's argument that the constitutional question "is an issue for the courts to decide, in the event of a legal challenge. It should not be an excuse for Congress to continue to deny a basic right to more than half a million people." Was the WaPo so sanguine about the Military Commissions Act? About the Patriot Act? About various actions by President Bush? Of course not. Members of Congress take an oath affirming that they will "support and defend the Constitution of the United States against all enemies, foreign and domestic"; to vote for a bill without considering whether the Constitution authorizes it is not to "support and defend the Constitution of the United States," it is to become an enemy of the Constitution.

In the comments: Pastor Jeff: "Who will rid me of this meddlesome Constitution?" LOL.

Related:
The problem of Congressional representation for the District of Columbia, II
The problem of Congressional representation for the District of Columbia

1. 1. The allusion is to Justice Scalia's Lamb's Chapel concurrence.
2. 2. Quoting Reid v. Covert, 354 U.S. 1, 5 (1957).
3. 3. Goldwater, THE CONSCIENCE OF A CONSERVATIVE (1990), 9 (quoting A. Larson, A Republican Looks At His Party (1956).
4. 4. Id. at 10.