[Congressional Record Volume 153, Number 137 (Monday, September 17, 2007)]
[Senate]
[Pages S11539-S11540]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                          DC VOTING RIGHTS ACT

  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:


[[Page S11540]]


       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.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, is the body still in morning business?
  The ACTING PRESIDENT pro tempore. The Senate is in morning business, 
but the Republican time has expired.
  Mr. KYL. Mr. President, I ask unanimous consent that I be allowed to 
proceed in morning business for 10 minutes.
  Mr. LEVIN. I have no objection.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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