Dealing Cynically with the U.S. Constitution

by David Carlin - March 4, 2009

Reprinted with permission.

It's funny the things that sometimes irritate you. At the moment I am greatly – some might say unreasonably – irritated by a bill that passed the United States last week. If this bill becomes law, it will expand the number of seats in the United States House of Representatives from 435 to 437 – one of these two new seats being given to the state of Utah, the other to the District of Columbia.

The argument for giving a seat to the District is that the residents of DC are American citizens, they pay U.S. taxes, they serve in the military, etc., so it's simply not fair that they should not have a vote in Congress. The reason for the new Utah seat is that DC, being overwhelmingly Democratic, will almost certainly elect Democrats to Congress; and so, to appease Republicans who might object to a pure DC bill, an equal and opposite seat will be given to solidly Republican Utah. The national press assures us that the bill, having already passed the Senate, will pass the House and eventually be signed into law by President Obama.

What irritates me about this pending law is that it is so plainly unconstitutional. Section Two of Article One of the Constitution says quite unambiguously: "The House of Representatives shall be composed of members chosen every second year by the people of the several states." A statute cannot amend the Constitution, and so it is inevitable that the new law will be ruled unconstitutional by the U.S. Supreme Court.

Or perhaps I should say that such a ruling is almost inevitable – for a High Court that has a track record of amending the Constitution by "finding" (i.e., inventing) in our organic law such imaginary rights as a right to abortion and a right to sodomy may exhibit its hermeneutic ingenuity by declaring that Article Two of Section One does not mean what it says. Of course, the Court as presently constituted – equally divided between four conservatives (Scalia, Thomas, Roberts, and Alito) and four liberals (Breyer, Ginsberg, Stevens, and Souter), with Justice Kennedy having the casting vote in all 5-4 decisions – will probably not overrule the Constitution: which is to say that Justice Kennedy, who is slightly more conservative than he is liberal, will probably not wake up on the day of the decision and say to himself, "Today would be a good day for the Court, custodians as we are of a 'living' Constitution, to declare part of the Constitution to be unconstitutional." But by the time the new act reaches the Court, perhaps the composition of the Court will have changed, becoming more liberal and thus more in love than it is at the moment with the idea of a "living" Constitution. Who knows what will happen then?

I should note in passing that I am not unpersuaded by the fairness argument when it comes to DC. I agree that the residents of DC should be able to vote for members of both the House and the Senate. But there are at least three fully constitutional ways of accomplishing this end:

• Make DC a state.
• Amend the Constitution so that DC, without being a state, can elect members to the House and Senate.
• Return DC to the state of Maryland, within whose boundaries the land of the District was originally located.

I've been wondering: Why am I so very irritated by this pending unconstitutional law? Why not worry about more important things while the Congress and president go through the foolish ritual of enacting a law that they are confident will be ruled unconstitutional by the Supreme Court?

For one, I'm bothered by the cynical irresponsibility of senators and representatives who would vote for a bill while knowing it to be unconstitutional (and, of course, since these members of Congress – despite a widespread myth to the contrary – are not stupid, they do know it). This is not to mention the cynical irresponsibility of a president who once taught Constitutional Law at one of the nation's premier law schools. These took an oath to protect the Constitution. Since the gods no longer do what they used to do in the primitive world when you broke an oath, i.e., strike you or your children dead, does this mean that oaths don't count anymore?

For another, I'm bothered by the racism-masquerading-as-its-opposite that is implicit in passage of this bill. What is driving the bill, of course, is the fact that the great majority of DC voters are African Americans, while there are voices of demagogic black "leaders" that charge that it is anti-black racism that stands behind any unwillingness to give House membership to DC. To fend off potential accusations of racism, then, members of Congress will vote for this bill while leaving it to the Supreme Court to say what is obviously true, namely, that the bill is unconstitutional. But this attitude is itself racist, since it presumes that African Americans are too stupid to understand the plain language of the Constitution. (You'd think that the mere fact of a President Obama would destroy that nasty stereotype, but it persists among both conservatives and liberals.)

Finally, and most of all, I am bothered because very powerful people are, once again, playing fast and loose with the American social contract. The U.S. Constitution is that contract. We all agree to it, and our agreement is one of the chief factors allowing a nation of more than 300 million people to live in peace and cooperation. The degree of peace and cooperation is not perfect, of course, but there is a very high degree of it. Undermine the Constitution, and you undermine that peace and cooperation. In the past 40 years or so, the social contract has been undermined by certain reckless and arbitrary rulings of the Supreme Court (I am thinking, for instance, of the abortion and sodomy rulings), and now it is being undermined by the cynical votes of members of Congress.

We Catholics believe that we have a divine guarantee ("Thou art Peter," etc.) that the Church will endure forever. We Americans, by contrast, have no divine guarantee that the United States will last forever. To make it endure, we have to work at it. In the vote to give DC membership in the House, Congress is working in the opposite direction.

David R. Carlin is the author of The Decline and Fall of the Catholic Church in America.