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April 25th, 2010

No Taxation Without Representation – Unless You Like Your Guns

US CapWritten by Nathan Tucker

This past Thursday, the U.S. House of Representatives had intended to debate the District of Columbia Voting Rights Acts but, thankfully, never did. The reason was not concern over the doubtful constitutionality of the measure, but rather the Democrats unwillingness to grant D.C. residents their gun rights. Just last week President Obama had urged Congress to pass the Act by November, a deadline that now seems improbable.

In a conference with reporters on Tuesday, House Majority Leader Steny Hoyer (D-MD) broke the news that the bill would not be debated this week. He stated that, though he was “profoundly disappointed,” the legislation would be indefinitely tabled, because “[t]he price was too high.”

What price? The Republicans added an amendment to the bill that would force the District of Columbia to lax its gun laws, which still remain among the strictest in the nation even after the Supreme Court found portions of the regulations unconstitutional in D.C. v. Heller.

The Democrats were unwilling to force a vote on the issue, which would likely have ruptured the party between its liberal establishment and its more conservative members from suburban and rural America.

The bill would have added two seats in the House, one for the heavily-Democratic District of Columbia (which currently has a non-voting member) and the other would be a temporary at-large seat for predominately Republican Utah, which had narrowly missed out on getting another seat after the 2000 census.

The rallying cry for those in favor of giving the District of Columbia voting rights is the tried and true “no taxation without representation.” While that truism strikes a cord with Americans now as much as it did in 1776, Congress cannot simply grant voting rights to those who do not reside in a state.

The Constitution specifically provides in Article 1, Section 8 that the seat of the federal government is to be located in a “District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress…”

The reason the Founders wanted the capital to be placed in a federal territory was to prevent it from being dependent on the good graces (or blackmail) of a particular state for its security and economic well-being.

Because the District was a federal territory, its residents originally could not vote for a president because Article 2, Section 1 limited that right to states. It was not until the 23rd Amendment that an exception was made for the District of Columbia, though exceptions were not also carved out for residents of other federal territories such as Guam and Puerto Rico.

Similarly, Article 1, Section 2 provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” (emphasis added) Recognizing that it would take a constitutional amendment to give the District the right to a representative, both the House and the Senate passed one in 1978 but it failed to be ratified by three-fourths of the states.

Supporters of the legislation claim that, despite this, Congress can still give the District of Columbia a representative by the ordinary legislative process because Article 1, Section 8 grants it the power of “exclusive legislation” over the District.

But Congress itself, by passing these two constitutional amendments (one successful and the other not), recognized that this grant of authority was insufficient to change the clear text of the Constitution. If it was, Congress would, at least in the District, be supreme over the Constitution and unfettered in its power. Clearly this was not what the Founders had in mind by “exclusive legislation.”

While it may be an idea past due to give residents of D.C. the right to vote for a Congressman, it should only be done by a constitutional amendment and in a manner, like the 23rd Amendment, which continues to preserve the District’s unique position as a federal territory.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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