It seems to me that there are reasonable arguments on both sides of the constitutional issue, notwithstanding the large volume of blog commentors who think it's the simplest issue ever. I've read the legal arguments advanced by Ken Starr and Viet Dinh (both of whom think Congress can constitutionally give DC the vote) and they're certainly not frivolous.

But at the end of the day, if the bill passes there will be a court challenge, and a final determination one way or the other. I respect the acumen of the smart folks at OLC, but I'm very confused as to how an unpublished OLC opinion could "make the measure more vulnerable to a legal challenge that probably would reach the Supreme Court if it is enacted." It's a purely legal question; the opinion of OLC is irrelevant (as is the opinion of Ken Starr, except to the extent he makes a persuasive argument). Is the idea that opponents of DC voting would be likely to sway a court by arguing that hey, this bill must be unconstitutional, because the OLC secretly says so?

OLC says the legislation likely is unconsitutional. Holder asks a different question of the solicitor general: Can you defend this? "Yes," they say, "we can defend unconstitutional legislation. We may lose in court because it is unconstitutional, but we can defend it."

It's all about appearances. Obama will say he tried to assist his friends in DC, but the courts simply obstructed him. All the reason for the DC folks to support Obama even more -- maybe he can do something about those recalcitrant judges.

Steve,

I suspect the idea is that publication of the fact that the Obama OLC also thought it was constitutional helps create more of a sense that those who disagree are outliers. Of course, if Obama puts Ken Starr and Viet Dinh on the Supreme Court, that would be two votes in favor of the legislation.

Er, make that unconstitutional.

Perhaps the opinion was changed because the President is worried about carrying the District of Columbia in 2012 ... :-)

I may be wrong, but I think that since the OLC function is a delegated one, the AG could take the unusual step of overruling it with his own opinion. But it does not seem that is what Holder has done. I don't know the answer to Orin's question about whether an OLC opinion about proposed legislation is actually binding.

As for the merits, my own opinion is that the DC voting-representation bill is unconstitutional. I read the arguments by Starr and Dinh but did not find them persuasive.

I would imagine OLC opinions are only binding to the extent the Attorney-General or the President does not overrule them.

This case does remind me of another question: How come there is such a tradition in the US, or at least in the US congress, of sticking unrelated amendments on bills? I don't think any country has a rule against this (I've been thinking about it, and I can't think of a way to write one), but I know of no country where they would tack an amendment about gun rights onto a bill about the electoral system.

Assuming that the bill is unconstitutional, who would have standing to challenge it?

I would think that before any legislation is enacted it is up to the President to decide whether it is constitutional. Whatever the OLC thinks of legislation is only relevant insofar as the President accepts the OLC's argument. If Obama decides on his own that the proposed law is constitutional, then, for all practical purposes, the executive branch has decided it is constitutional.
All executive power in our federal government is, after all, reposed in the President.

Oh come on, check the dateline. Between this and the Stevens thing, Eric Holder is in the running for best AG prankster since Kleindienst.

I don't think any country has a rule against this (I've been thinking about it, and I can't think of a way to write one), but I know of no country where they would tack an amendment about gun rights onto a bill about the electoral system.

The IL Constitution

Bills, except bills for appropriations and for the
codification, revision or rearrangement of laws, shall be
confined to one subject.

The IL Supreme Court hasn't interpreted the provision incredibly strictly, giving deference to the legislature, but they have required a "natural and logical connection" between the matters (People v. Reedy).

Martin,

I believe it's mostly a procedural dodge. There are lots of rules about introducing new bills, but amendments to existing bills don't have those limitations.

Also, the amendment might not have enough support to pass on its own, but if it's successfully attached to something else it's also not so odious as to kill the entire measure.

Also, when compared to fusion governments such as the UK, the executive has far less influence over what measures are brought up for a vote and what the final form of any particular bill will look like. Whether that is a feature or a bug is left as an exercise for the partisan hacks.

@Oren: Thanks. It wasn't the writing of such a rule itself that I expected to be the problem, but more the question of who decides what "one subject" is. I presume that courts would normally be reluctant to get involved in this question. I'll take a look at the Ill. case.

Assuming that the bill is unconstitutional, who would have standing to challenge it?

Any citizen of the next state in line to get a house seat (since the total number is fixed) should suffice, no?

It also has the benefits of being less politically infeasible than retrocession: there's no way Maryland is taking the District given how screwed up it is.

Entirely academic constitutional puzzler -- can Congress retrocede parts of DC to MD unilaterally? The Constitution requires the consent of the state legislature to remove parts but not to add them ...

@Soronel Haetir: I suspect it has less to do with the parliamentary/presidential system question, and more with how amendments are introduced and voted. I imagine that in many parliaments, it would be about as difficult to attach an amendment to a bill as it is to introduce a new bill. (Say, the measure needs 50% + 1 in either case.) In such circumstances, there is nothing to be gained from sticking alien amendments on bills. (Except maybe to make it more difficult for the president to veto.)

In the vagaries of US congressional committees, it is probably easier to add an amendment than to write a whole new bill.

How 'bout the citizens of Puerto Rico?

Guam, Virgin Islands, Marshall Islands, Samoa, Palau ...

This is way offtopic, but I always thought the insular cases were/are a disgrace to the US Constitution. A territory either is or is not part of the United States. We fought a hard war to prove that Britain did not have the power to govern colonies without granting them franchise ...

I read Ken Starr's Op/Ed piece, and I think he is mistaken. Yes, the Constituion grants Congress plenary power over the District, but that is not the issue. The issue is about voting in Congress, and the whole purpose of a Constitution is to set the parameters of the three branches of government.

Two Senators from the District of Columbia is one of the more frighteneing things I've heard in a long time.

The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional.

The bill is flagrantly, patently unconstitutional, since it violates the constitutional requirement of Article 1, Section 2 of the Constitution that the “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” Washington, D.C. is not a state. The Founding Fathers specifically intended to limit Washington, D.C.’s influence over Congress. The Fourteenth Amendment likewise states that “Representatives shall be apportioned among the several States according to their respective numbers.”

Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of “exclusive Legislation” over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties. Under this logic, Congress could legislatively authorize warrantless searches and seizures in the District, effectively overriding the Fourth Amendment. And it could summarily punish innocent people through “bills of attainder,” which are prohibited in the very same article of the Constitution — Article 1 — as the requirement that only “states” receive Congressman. If that requirement can be overridden by the District Clause, as bill supporters claim, then why can’t other requirements in the same article, like the ban on bills of attainders?

Before, it had always been assumed that grants of power are limited by other constitutional provisions, not the other way around. After all, the Constitution grants Congress the power to regulate interstate commerce, but it can’t use that to override the First Amendment, by restricting commercial speech, national campaign ads, or speech on the Internet. Congressional laws regulating the publishing industry, interstate advertising, web sites, and other forms of interstate commerce have been struck down as a violations of free speech, without anyone suggesting that Congress’s power overrode the First Amendment. Similarly, a federal appeals court struck down the Elizabeth Morgan Act as a bill of attainder in 2003, even though it was legislation specific to the district.

Attorney General Holder’s political meddling is a breach of his promise not to politicize DOJ’s legal positions, and to take legal positions based not on “a political process,” but rather “based solely on our interpretation of the law.”

But this shouldn’t be a big surprise, coming from an Administration that has routinely broken campaign promises, such as Obama’s promise of a “net spending cut,” which he broke in myriad ways, such as a budget that will $increase projected deficits by $4.8 trillion, and bailouts amounting to $8 trillion (not counting another trillion dollars for the toxic-asset buy-up program and $800 billion for the economy-shrinking “stimulus” package).

I'm waiting for all the public commentators who blasted Bush's attorney general for opinion shopping (in order to support the president's war-fighting powers in the middle of a war) to blast Obama's attorney general for opinion shopping (for nakedly partisan political reasons support the President's war-fighting powers in the war against disenfranchisement of US citizens).

FIFY.

Like Bush's claims in Hamdi/Hamdan/Boumedienne, I'll let the Supreme Court, not the President, decide the matter of constitution law.

Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?

You can start lobbying the legislature of MD now -- I'm sure they're eager to add another crime-ridden inner city to the joy that must be governing Baltimore.

Alternatively, you can start drafting an OLC opinion on the power of Congress to forcibly retrocede DC to MD against (or at least absent) their consent.

I suspect the idea is that publication of the fact that the Obama OLC also thought it was constitutional helps create more of a sense that those who disagree are outliers.

This is surely true in a political sense, but does it really impact the outcome in the courts in any significant way? I mean, there's a reason courts don't typically admit expert testimony on questions of law.

Wouldn't it be easier (or at least more likely constitutional) to stick Washington DC back in with Maryland where it came from, at least for the purposes of Federal voting?

The only way to make that happen is if DC became a part of Maryland. Otherwise, you face the exact same constitutional problems that the DC voting bill has. And have you heard a single Maryland politician suggest this? If not, I think you have your answer as to how easy it would be.

Supporters of the bill argue that the bill is constitutional under the District Clause in Article 1 of the Constitution, which says that Congress has the power of “exclusive Legislation” over the District. They say its language trumps other constitutional provisions. But that argument is frivolous. Allowing grants of power, like the District Clause, to override other provisions of the Constitution, such as the Fourteenth Amendment, is dangerous, since those other provisions also contain crucial civil liberties.

You must not have thought too much of Yoo et al's arguments about the extent of the president's power as commander in chief then.

It's an interesting "as if", but I don't think that will fly with Art I (amendments notwithstanding, of course).

I was thinking of the way the various island have been alotted to different CoA districts. But I forgot that the Constitution doesn't even require that such a thing as the Courts of Appeals exists, much less how their jurisdiction should be decided. Art I does say, however, that members of Congress are elected by the "People of the Several States", and - more importantly for my suggestion - that the District of Columbia was created "by Cession of Particular States".

'course Puerto Rico's argueably different because the folks there are citizens from birth, but yeah.

The people of Guam have US citizenship by act of Congress.

I much prefer HR 665 (giving DC congressional representaiton through Maryland, without retrocession). The only part of HR 665 that seems unconstitutional ...

Excepting that

The House of Representatives shall be composed of members chosen every second year by the people of the several states

Someone noted that an OLC job is a great stepping stone to a private law firm job, so it is not a second-rate job. True, it's a great stepping stone-- but that's different from being a great job. What it says is it attracts people with potential who aren't good enough for a law firm partnership, but might be in the future. The law firms have lots of lawyers who *already* have developed enough skill to be a partner-- so they are already.

Can't we just replace Barney Frank with Marion Barry now and get it over with? I don't understand how anyone could say that the citizens of DC deserve a congressman, but not two senators.

The good news is that a DC statehood resolution would almost certainly fail in the Senate.

I don't understand how anyone could say that the citizens of DC deserve a congressman, but not two senators.

Simple. Giving DC two Senators would give them representation in the Senate all out of proportion to their population. Giving them a congressman would not.

Update from previous: Washington DC proper has about 600.000 inhabitants. Baltimore city has 650.000, and the Baltimore metropolitan area 2,6 million.

Based on the reasoning in Ken Starr's piece, Congress could also grant Congressional voting privileges to Puerto Rico, Guam, American Samoa, Guantanamo Bay, Yellowstone National Park, Yosemite, Big Bend, Grand Canyon National Park, each Indian Reservation still in existence, and each Military Base in the United States (and maybe foreign bases - Would the Congressman from Subic Bay please rise?).

This is funny, but it couldn't be more incorrect, as Starr's argument is principally based upon the Seat of Government Clause, Art. I, sec. 8, Cl. 17, which pertains only to the District of Columbia and not to any of these other places.

Agree or disagree with Starr's legal argument, it is virtually impossible for anyone to read that argument and conclude "oh, that would apply equally well to Grand Canyon National Park." I've noted a remarkable tendency for people to blithely opine "oh, that's obviously unconstitutional" without even engaging the merits of the other side's arguments.

D'oh! - 'since'

Simple. Giving DC two Senators would give them representation in the Senate all out of proportion to their population. Giving them a congressman would not.

That's how the Constitution works. You are of course free to call for the abolition of the Senate (or the less-infeasible option of turning it into a mostly ceremonial body like the House of Lords) but given that the Constitution leaves us only with the options of statehood or total disenfranchisement, we should accept statehood.

From the Maryland perspective, the problem with retrocession is that it would shift the political power of the start away from Baltimore and firmly toward DC and the suburbs on that side of the Potomac.

Whoops, meant to comment on that. MD doesn't want DC because it's crime-ridden constant headache that sucks way more in government services than it pays in taxes. The MD suburbanites already subsidize the **** out of Baltimore, leave them alone!

most of California would love to get rid of those hippies in LA/SF and likewise

Are there that many hippies in LA?

@Eric Rasmusen: Look at the link I posted before, about Marty Lederman going to the OLC.

This, BTW, is what it says on the OLC vacancies page:

Attorney-Advisor Positions

The Office of Legal Counsel (OLC) employs highly qualified attorneys to serve as Attorney-Advisors. OLC’s principal function is to assist the Attorney General in fulfilling the role of legal adviser to the President and Executive Branch agencies. More specifically, OLC’s responsibilities include advising the Attorney General, the White House Counsel, all executive departments and agencies, and the various components of the Department of Justice on constitutional and statutory matters; resolving legal disputes within the Executive Branch through the issuance of binding legal opinions; reviewing for constitutionality legislation proposed by the President or by Congress; and reviewing for legality and form all executive orders, proclamations and memoranda proposed to be issued by the President and all Attorney General orders and regulations.

Because OLC’s 24 attorneys handle some of the most difficult and important legal issues confronting the Executive Branch, the Office is highly selective in its hiring. Applicants must have a J.D. degree, be an active member of at least one bar (any U.S. jurisdiction), and have at least one year of post-J.D. legal experience. The ideal candidate will have exceptional academic credentials, judicial clerkship or comparable experience, strong background in constitutional law, and outstanding legal research and writing skills. Turnover in Attorney-Advisor positions is sporadic and often difficult to predict, and there is therefore no established hiring cycle. For a listing of OLC's current experienced attorney vacancies, please visit the Department's Office of Attorney Recruitment and Management website at http://www.usdoj.gov/oarm/attvacancies.html.

@Eric: According to the OLC's appropriations request, they have 37 total staff.

Hans Bader: The OLC lawyers who admitted that the bill is unconstitutional were liberal academics appointed by Obama himself. But not even they could argue with a straight face that it was constitutional.

I don't think the Post story said who signed the opinion. Obama's nominee to head the OLC has not been confirmed. Could it have been a career OLC attorney?

Although I happen to agree with you on the merits that the bill is unconstitutional, I can't help but notice that prominent liberals such as Ken Starr, Viet Dinh and Orrin Hatch do argue the opposite proposition.

Steve: Art. I, Sec. 8, Cl. 17 also gives Congress "like Authority" (i.e. the same as for the seat of government) over "Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." At a minimum, it follows directly from Starr's argument that if Congress may give D.C. House representation, it may do the same for these other places --military bases, for example. It is a closer question whether Congress's Art. IV, Sec. 3 power to "make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States" would mean (assuming Starr is right) Congress could also give Guam, Puerto Rico, or the national parks representation, but generally this power has been considered equivalent to that give in the Seat of Government (and Needful Buildings) Clause.

If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia.

Unconstitutional condition.

Oren: If we are going to quibble about constitutional technicalities, it is only an unconstitutional condition with respect to "the People of the several States."

Surely if we can read "the People of the several States" to include "People not of any State", then all constitutional technicalities are out the window.

Damn those evil warmonger neocon Republicans running roughshod over the constitution, adopting political stands as legal ones--

Wait . . . what? Obama's president now? OH! Well, in that case, carry on.

As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

Aside from it's unconstitutional, you mean?

All 538* members of the Congress are required by the nature of their job to spend a great deal of time in Washington, D.C., which necessarily entails, at least at some level, becoming familiar with the trials, tribulations, and affairs of that city. Each therefore is, in some respect, a representative of the District of Columbia and has a selfish interest in DC's well-being, thus obviating the need for separate representation.

*-Except if they're running for national political office and don't resign their seat.

Bob White - thanks for offering a sincere answer. I somewhat sea the point, but the lack of accountable representation is still troubling

hawkins: As a matter of policy, what non-partisan justification are there for opposing DC voting rights?

The same justification there was for having the federal district not be part of any state in the first place: having the seat of government be on "neutral ground."

John Burgess: As I've been saying for over 20 years, the answer here is not to give DC representation, but instead to free it from federal taxation. DC income tax is currently around 9.6% of federal taxes.

I've had the same idea. The downside of that idea is it would give people more of an economic incentive to settle in DC. DC should have fewer people, not more.

hawkins,

IIRC, the original purpose of having D.C. set apart, not part of any state, was to avoid any state's being able to vaunt itself as possessor of the national capital.

I doubt that the framers envisioned D.C. having quite as many full-time residents as it now does, though. I can see a case for a Constitutional amendment giving the residents a voting Congressional seat (or incorporating them into the population of Maryland for Congressional-election purposes), but it seems pretty clear that a Constitutional amendment is what it'd take.

To add a bit to the policy reason for not giving DC a seat in Congress: since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.

Also, since DC is the national capital, even if the rest of Congress didn't care selfishly about it because they lived there, they have ample incentive to take care of the city out of national pride.

As an empirical test we could ask two things:

1. Does the Federal government subsidize DC more than it does other cities, such as Baltimore?

2. Does the DC government think the federal government will bail it out, and hence has more inefficient government?

Reason (2) is why DC should be run by the federal government instead of its citizens.

If the residents of DC are so troubled by their "disenfranchisement", they are free to move to Maryland or Virginia. Problem solved.

Wouldn't your "reasoning" have applied equally to blacks living in the Jim Crow South who had the freedom to move to northern states?

since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.

The benefit of spending considerable time in a nice place pales in comparison to the benefit received from allocating funds to their home districts.

ample incentive to take care of the city out of national pride

This assumes that Congressmen seek funding for their home districts out of local pride, rather than for mostly selfish reasons.

How about changing DC residency requirements? It seems fairly undisputed that Congress controls (through the executive) who lives on military bases, who stays in national parks etc.

Perhaps we just need to kick everyone out who is not somehow related to running the government.

I do find it interesting how land ceded to the feds was then paceled out for residental living, the history behind that might be interesting.

If you mean under the Article V amendment process, that is a reasonable policy question. FWIW, that has been tried before and failed the political test of ratification, whatever the policy merits.

I dont believe DC will receive voting rights for constitutional reasons (Amendment is necessary) and political reasons (the nation is too evenly divided to ratify an Amendment that clearly benefits one party). I was trying to isolate both of these considerations.

hawkins,

I don't think such considerations are very relevant today. Do others disagree?

Certainly they're less "relevant" today, in that the states are now less, um, "states" than administrative districts. We have a lot of current dangers, but individual states starting to act again like sovereign nations doesn't rank way up there.

All the same, the idea of the seat of federal government belonging to none of the states makes practical and symbolic sense.

I feel the same way about the electoral college.

Now, see, I feel completely differently about the Electoral College. I mean, quite apart from whether you want states to have their own characters, to retain a sort of corporate voice in national affairs (I do; maybe you don't), the practical problem of abolishing the Electoral College is tremendous. Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?

Now, see, I feel completely differently about the Electoral College. I mean, quite apart from whether you want states to have their own characters, to retain a sort of corporate voice in national affairs (I do; maybe you don't), the practical problem of abolishing the Electoral College is tremendous. Do you really want to think about a close Presidential election in which the recount has to be, not in one state, but all of them?

Valid points

The larger the pool, the less likely of the vote being close enough to merit a recall, assuming the measurement error is the same.

Wiki List of US Presidential elections by popular vote margin

Oren,

The larger the pool, the less likely of the vote being close enough to merit a recall [recount?], assuming the measurement error is the same.

It's true, obviously, that with 50 states the likelihood of a given state being "too close to call" is a lot greater than that of the whole country being "too close to call." But in 2000 the popular vote margin was about 500,000 votes, and with such high stakes and over 100 million ballots cast, don't you think there would've had to have been a nationwide recount, were the popular vote the arbiter?

Yeah, it's an exceptional case. But when an exceptional case has actually happened within the last decade, you are more or less obliged to act as though it might happen again.

"Wouldn't your "reasoning" have applied equally to blacks living in the Jim Crow South who had the freedom to move to northern states?"

No, it wouldn't. Interesting analogy, though. I would say that the District of Columbia not getting a vote in the House of Representatives is more like the Holocaust than the Jim Crow South.

To add a bit to the policy reason for not giving DC a seat in Congress: since all the Congressmen spend time there, Congress already has too much incentive to spend money on DC for purely selfish reasons.

Also, since DC is the national capital, even if the rest of Congress didn't care selfishly about it because they lived there, they have ample incentive to take care of the city out of national pride.

This may sound good as a matter of theory, but historically Congress has limited expenditures on DC. Given that long-standing practice, I'm not too worried about the theory.

So 6 of the 47 elections with nationwide popular vote reported have had a margin of victory of less than 1%. That's a little more than 1 out of 8. 3 of the 13 elections held within the past 50 years (a little over 23%) have had a margin of victory of less than 1%.

Most states don't require a recount unless the vote totals are within .5% or less. Only 1960 was that close. Even then, an automatic recount rarely changes the result. Take MN, for example, as indicative of how close the candidates need to be for a recount to change the result. The difference there was roughly .007%. The closest popular vote in history (1960) was 20 times that amount.

The other problem with a nationwide popular vote is that even if the final reported margin is wide enough to avoid a nationwide recount, it is more likely that the margin will be due to fraud. Voter fraud is harder to hide where elections are closely contested, and easier to accomplish in areas where one party has total control. With the current system, there's little incentive for party machines to rack up big vote totals with fraudulent votes in places with no competition. With a nationwide popular vote, that would change.

That incentive exists in every single non-presidential election in the country right now, but it doesn't seem to affect our elections.

Your average member of Congress has never even set foot in any part of the city south of the river.

Isn't the part of the city south of the river part of Virginia?

Sorry, forgot to mention that HR 665 includes a provision that, for purposes of federal elections only, residents of DC will be considered residents of Maryland.

I don't see how that could be enough, given that art. I (8) clearly says that DC has been "ceded" by, in this case, Maryland.

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, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards and other needful Buildings;

Your average member of Congress has never even set foot in any part of the city south of the river.

Isn't the part of the city south of the river part of Virginia?

Nope, it's Wards 7 and 8, which lie south of the Anacostia river.

Also, the idea of eliminating income tax for D.C. residents strikes me as incredibly perverse. A significant percentage of D.C. residents work for the U.S. Government so this would amount to a huge tax break for Government employees -- the people who help write and enforce income tax law would not necessarily be paying the tax themselves. At least, certain members of the Obama Administration who have trouble filling out their tax returns correctly would be given a break.

The District Clause itself is at the root of the problem. Starr calls it Majestic" and "Plenary" . I read that as "Monarchical" and "Tyrannical". If you would, read, compare and consider both the Declaratory Act of 1766 and the District Clause. In each, a national legislature attempts to arrogate to itself unwarranted Absolute Power, "in all cases whatsoever", over an unrepresented minority of the national population. This is inconsistent with the fundamental bedrock principle of participatory (lower case democratic or republican) government, known as "Consent of the Governed"

Also, the idea of eliminating income tax for D.C. residents strikes me as incredibly perverse. A significant percentage of D.C. residents work for the U.S. Government so this would amount to a huge tax break for Government employees -- the people who help write and enforce income tax law would not necessarily be paying the tax themselves. At least, certain members of the Obama Administration who have trouble filling out their tax returns correctly would be given a break.

Out of a city of 600,000, there are at most a few thousand people in D.C. responsible for writing and enforcing the tax laws. Many of them live in the suburbs and so are not even residents of the city. The vast majority of the federal employees in the city work in some random job that has nothing to do with the tax laws, like "State department secretary," "VA janitor," or "DoJ lawyer, civil rights division." Everyone else works in a job that isn't even part of the federal government—police officer, taxi driver, bartender, pediatrician. But hey, they don't count.

I'm not saying this "tax break for D.C. residents" plan is a good idea, but this is a really stupid reason to oppose it.

Seamus (mail): You bet. Yoo's arguments that the president can do whatever he wants as long as he invokes the Commander-in-Chief Clause and Starr's arguments that Congress can do whatever it wants about D.C. representation in Congress by invoking the Exclusive Legislation Clause are both nonsense.

We're in agreement.

I fundamentally disagree with the notion that you can be estopped from such a fundamental right as voting simply because you knowingly moved to a particular jurisdiction, (at least absent some extremely significant reason residents of that jurisdiction shouldn't be allowed to vote) but I suspect we'll just have to agree to disagree about this.

Yes, we certainly will have to disagree. I don't regard voting as a "fundamental right," but simply as an arrangement that may or may not be conducive to liberty and good government. Hong Kong, for example, was the freest country on earth, even before any of its people acquired the right to vote for the Legislative Council in 1991. I have no right to vote in the District of Columbia, even though I probably spend more of my time there than I do in Virginia, where I sleep, yet I don't think I'm deprived of any "fundamental right." (I'm presuming that your argument for voting as a "fundamental right" has something to do with having a say in the laws that one has to live under, but why that should mean only getting a vote where you live but not where you work or do business is hard to fathom.)

I don't regard voting as a "fundamental right," but simply as an arrangement that may or may not be conducive to liberty and good government.

Well, at least now we are at the bottom of the disagreement.

I think the prevailing opinion (correct me if I'm wrong) is that government by consent is an intrinsic good, preferable irrespective of the quality of government produced.

Going back to the Jim Crow South situation, you acknowledge that, although relatively few, there certainly were blacks who had moved to the Jim Crow South from northern states. Since they voluntarily moved to the Jim Crow South, wouldn't your argument against DC residents being enfranchised at least apply equally to these relatively few blacks in the Jim Crow South?

I acknowledge no such thing. I acknowledge only the possibility that such people existed. In any event, no one would have bothered to enact laws that would have required black immigrants from the North (but not native-born black Southerners) to sit in separate sections of buses and theaters, to use different drinking fountains, to attend different schools. But yeah, if it had been feasible to do such a thing, immigrants from the north would have had a lot less of a beef than native-born blacks would have for the same treatment. (Similarly, I always found it interesting that, back in the days of apartheid, South Africa had a problem with illegal immigration by people from other African states entering South Africa. I think a pretty good argument could be made that those immigrants had a lot less ground for complaint than the native-born South African blacks. Similarly, a lot was made, about the time of the first Gulf War, of the fact that about half the population of Kuwait was made up of people who couldn't vote because they were non-citizens. That never struck me as a terrible injustice. They could always go back to Palestine, or wherever they or their ancestors came from. (Palestinians who came, or whose ancestors came, from portions of Palestine now governed by Israel might not have as much of an option as those who came from the West Bank or Gaza, but again, Kuwait was under no obligation to take in Palestinian refugees at all, so it should have had the right to take them in under the condition that they wouldn't become citizens.))

No. With relatively few exceptions, blacks living in the Jim Crow South were people whose ancestors had been brought against their will to those states, while current residents of the District of Columbia, with relatively few exceptions, are either people who voluntarily moved there or people whose ancestors voluntarily moved there, even though they knew or should have known that they would be thereby be disenfranchising themselves.

So what? Let's write out the syllogism:

Some people voluntarily moved to D.C.
The cost of moving out of D.C. is not as high as the cost of moving out of the South.
Therefore, residents of D.C. should be denied the right to vote.

Oren: I think the prevailing opinion (correct me if I'm wrong) is that government by consent is an intrinsic good, preferable irrespective of the quality of government produced.

I dunno about that. Let's look at the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

So yeah, the government derives its just powers from the consent of the governed, and they have the right to abolish it when it becomes destructive of its ends, but it seems to me that the ENDS are what is really important, and those are to secure the rights to life, liberty, and pursuit of happiness. A government that has frequent and free elections but is in fact destructive of these ends is certainly not, in my opinion, preferable to an absolute monarchy that in fact protects the fundamental rights of the people. In practice, it's reasonable to conclude that representative government is more likely to protect the people's rights, but the rights are the end and representative government merely the means.

A government that has frequent and free elections but is in fact destructive of these ends is certainly not, in my opinion, preferable to an absolute monarchy that in fact protects the fundamental rights of the people.

We'll have to disagree there. I believe people have the right to get what they want, even if what they want is objectively worse than some other possibility.

I read the DOI quite opposite than you, focusing on the fact that no government can be considered just without the consent of the governed. Of course, the purpose of the government is to achieve some ends, but The People can implement the mechanics however they want but cannot bind the future to any implementation. That is to say, the right to change the mechanics is inalienable.

Hypothetically then, the DOI (reifying here for ease of syntax, it's 2AM) would have no problem with The People decided to have an absolute monarchy, but it would be a funny kind of monarchy because The People would have the right to alter or abolish it anytime in the future. They cannot be alienated from that right, even by their own consent.