Congress: Unconstitutional Laws 'R' Us

Background: The Constitution
The Constitution of the United States is very clear about how the federal governments principal officials are chosen. The Constitution, as amended, requires (1) the direct election of Congress by the people of the several states (House of Representatives described in Art. I §2, and Senate described in Amend. XVII), (2) the election of the President by electors chosen by a formula that mirrors the states' voting weight in Congress (Art. II §1), and provides that the District of Columbia gets to nominate the number of electors it would have were it a state, provided it never has more electors than the least populous state (Amend. XXXIII), and (3) the appointment of members of the Supreme Court by the President with the concurrence of the Senate (Art. II §2). The Constitution clearly establishes that a state is not the same thing as "any place a citizen shall live", however, as it treats the Congress of otherwise limited power as having the authority to "exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States" in the same manner as Congress may govern foreign territories (Art. I §8). The "District" referred to in Art. I §8 of the Constitution is the little square punched out of the Eastern coastline of Virginia, long known as the District of Columbia. The District of Columbia is not among the fifty states, but was ceded to the federal government as a ferderal possession to be retained as a seat of government.

The Present Absurdity
Now, we see President Obama -- who touted on the campaign trail his credentials as a professor of Constitutional Law -- supporting a bill that purports to pretend the District forming the seat of government is a "state" for purposes of obtaining representation in Congress. Let's think about that one for a moment.

Joseph Lieberman, a co-sponsor, pretends that this is somehow appropriate because the District is already treated as a state under some existing federal legislation. This is nonsense. Congress is the sole legislator of the District of Columbia, limited in its power only by the Constitution. What government or privileges persons within the District may enjoy is for Congress to select. Congress is not answerable to the District in any way (short of its answerability in Court should it enact unconstitutional laws), and never has been under the Constitution as written (even as amended). When Congress chooses to oust the District's elected mayor (an election that occurs only because Congress in the late twentieth century provided for such local elections), Congress does not offend any law of the land. To pretend that the District is a separate sovereignty and entitled under the Constitution to select the Congress is daft; to allow the District to participate in the selection of the President required a Constitutional amendment, and so would its further elevation toward statehood. (Or the District could petition Congress to be admitted as a state.)

What Does It Matter?
To have the District of Columbia elect members of Congress is not merely offensive to every state whose voice in Congress is thus diluted; it is offensive to the notion of a government of limited powers described in a Constitution designed to outlive the short lives of its mortal authors. It can hardly be argued that signing into law an unconstitutional bill is a harmless error sure to be caught by the courts, because our lifetime-tenured and apparently illiterate judges are still claiming that the District of Columbia is entitled to immunity to suit under the Eleventh Amendment. Given that the United States Court of Appeals for the First Circuit seems content to ignore that the District of Columbia is not a state and is expressly treated by the Constitution as utterly different than a state (e.g., Congress exercises plenary power there just as on a federally-owned foreign territory), it is evident that laws seeking to accomplish unconstitutional results are in real jeopardy of simply erasing the Constitution.

And who cares? Well, the parts of the Constitution that protect your most important rights are written in the same ink. If those sworn to uphold the Constitution are committed to demonstrating that its ink is not indelible, the instrument is doomed.

The future may afford further opportunity to address President Obama's commitment to the Constitution he swore to defend, but for now he displays fairly good evidence that at minimum does not act like he knows what it says.

So, Mr. President: you can find it here for free.