The Arc of History: A Response to the Washington Post that To Date It has Declined to Print
By Timothy Cooper
The Arc of History
On election night, President-elect Barack Obama stood before a sea of cheering people in Chicago, and said: "If there is anyone out there who still doubts that America is a place where all things are possible… tonight is your answer." Just two days later, the Washington Post threw cold water on such lofty sentiment—at least so far as it might pertain to D.C. residents--warning them against "overreaching" on D.C. voting rights. (Post editorial, November 6, 2008) It called on District voters to support the D.C. Voting Rights Acts, which falls far short of granting residents of the nation's capital equal rights under the U.S. Constitution, providing only a single voting member in the House of Representatives as opposed to equal rights under statehood.
One need only recall the Post's own endorsement of D.C. statehood in 1992 to appreciate how low the paper's expectations have fallen during the intervening years of Republican domination. The timidity of the Post's position invites challenge.
That arc and better day has always pointed to and been about achieving genuine political equality for Washingtonians—not a voting rights' minimalism that violates the integrity of the indivisibility of congressional representation. Equality is not a right to be sliced and diced. It is a fundamental human right that can be only fully achieved under the U.S. Constitution with a grant of full statehood.
To pursue the D.C. Voting Rights Act now—with a majority Democratic Congress about to roll into town, together with the first-ever African-American president, who'll be residing in an African-American majority population disenfranchised for hundreds of years too long—runs the risk of winning nothing while losing our one grand chance at achieving everything. It's tantamount to a riverboat gamble—a throw of the dice we cannot afford to take.
Here's why.
As the Post notes, the passage of the D.C. Voting Rights Act will be vigorously challenged in court. Anyone reading Jonathan Turley's George Washington Law Review article, "Too Clever by Half: The Unconstitutionality of Partial Representation of the District of Columbia in Congress" should consider his basic legal point: The plain language of the constitution, which grants congressional rights to residents of states only, proscribes Congress from granting D.C. residents any form of voting rights by legislative fiat. Only an act of Congress bestowing states' rights on the non-federal areas of the District, or passage of a constitutional amendment, will pass constitutional muster.
Every legal challenge mounted by District leaders and allies in recent years over the absence of District voting rights and its right to tax under the constitution has failed to live up to expectations. Why should it be any different this time? If, after two or three years of protracted litigation, the courts reject the bill as unconstitutional, the District will be left empty-handed, while Utah walks off with its additional seat through reapportionment after completion of the 2010 Consensus. Worse, the District's hour of opportunity may have passed.
The District requires a new bill for equality that will stand up to intense legal scrutiny. That would be a statehood bill. Such a bill would preserve the federal "seat of government" as required under the constitution by contracting it, and granting the non-federal areas of the city states' rights. There is ample legal precedent to accomplish this. Indisputably, Congress enjoys the constitutional authority to create states. Congressional action to limit the size of the District was upheld by the Supreme Court, following the return of Alexandria and Arlington counties to Virginia in 1846.
Moreover, even if the D.C. Voting Rights Act was upheld by the courts, it could be undone by a single act of a future hostile Congress. Given the history of congressional malice towards D.C., it's not unthinkable. Statehood, on the other hand, guarantees equal rights in perpetuity.
The District has nothing to lose by standing on principle. If a major effort to pass statehood legislation fails under an Obama presidency—who not incidentally is on record supporting full statehood--in a Congress brimming with Democrats—then it may be reasonable to assume that D.C. statehood is a strategy destined to fail. The D.C. Voting Rights Act—or D.C. Delegate Norton's original bill for equal congressional representation—could then be revived, based on the hope that a court challenge by Republicans might be overcome, despite the plain language of the constitution.
Of course, there are enormous challenges ahead in order to achieve statehood. First, it will be necessary to return all state functions to the District's control, including the courts and D.C. prisoners, so that it may be admitted to the Union on the same basis as every other state. Politically, it is necessary to honor the so-called equal footing doctrine. Funding to pay for all state functions should come through the restoration of a federal payment, lost in 1997, or in the form of a payment in lieu of taxes. Added together with the inherent right of a state to negotiate reciprocal taxing authority, sufficient funds should be available to meet the District's financial state responsibilities.
A bill, either as stand alone legislation or as a part of statehood legislation, that would chart a path for the reclamation of all state functions, should be put before the D.C. Council for public debate at the earliest possible date.
Finally, President Obama should be petitioned directly to consider issuing a primetime national appeal on behalf of D.C. statehood, appealing to the nation's sense of fairness and to his efforts to create a more perfect union. Such a plea would be similar to President Johnson's call to Congress in the 1960s to support uncompromising civil rights legislation. But whereas Johnson invoked the classic lyrics, "We shall overcome," President Obama should summon the nation to right an historical wrong with his own script: "D.C. Statehood—Yes, we can."
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