The Constitution, DC Statehood, and Bad-Faith Arguments

As the House passes a DC statehood bill, a conservative argument about its constitutionality has popped up everywhere. Here's one notable example from The Wall Street Journal:

The Framers provided in the Constitution’s Article I that Congress could, “by cession of particular states,” control a small area in which the federal government would operate. In 1790 part of the territories of Virginia and Maryland, two of the 13 states that ratified the Constitution, were delineated for federal control. Advocates of statehood brush aside the constitutional concerns and frame their cause as a simple question of democracy. [...] The statehood push is ultimately a power grab to change the Senate’s partisan composition—a procedural escalation that hasn’t been tried since states were admitted along partisan lines in the 19th century.

Yes, to some extent it's a power grab for Democrats—though it's rich to see Republicans clutch their pearls on that one. Still, DC has more residents than either Vermont and Wyoming, so the argument for representation is, on its face, reasonable.

The more dubious assumption with the constitutionality argument goes something like this: "It's right there in black and white, plain as day. We just need to follow the document."

OK. Let's look at the Article I, Section 8 text on DC's status:

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...

You might assume obvious unconstitutionality with DC's status, though not its becoming a state, but with its size. DC is 68.34 square miles, so we're already disobeying the constitutional 10 square mile requirement. 

Well, not exactly. "Ten miles square" refers to a square parcel of land, 10 miles on each side, or 100 square miles. That usage has since fallen out of favor, so the plain-English reading of 1788 isn't the same as 2021.

Also, this short exert is all the Constitution says on the matter. Therefore, legal scholars commonly look toward contemporary writings to fill in gaps. Here's how James Madison defends the clause in Federalist 43:

And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and the consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part of it, to concur in the cession, will be derived from the whole people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.

So easy to read. One could hardly argue with President Trump's Advisory 1776 Commission suggestion that "Civics and government classes should rely almost exclusively on primary sources." What ninth-grader couldn't follow this?

Kidding aside, I'm having trouble deciphering this with my Ph.D. in mass communication. Still, nearest I can figure, Madison assumed that residents of the ceded District would go along with the plan for various reasons, especially because they'd have some say regarding the government overseeing them. While that's been true at some municipal levels, Congress (with no voting members from DC) must still approve the District's budget—though in fairness, they rarely meddle.

My point in all this? The idea that there exists an infallible, plain-English reading of the Constitution is ridiculous. What phrases meant then vs. now and consideration of sources external do the Constitutional document, combined with ambiguous language and changing social contracts requires interpretive readings.

Lastly, even when constitutional provisions are generally clear, we have a long tradition of ignoring them when it suits us or just makes sense. Consider the term lengths of Senators from newly admitted states, described in Article I, Section 3:

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year.

So, when a state enters the Union, its allocated two senators who each serve six-year terms, after which re-elections are staggered such that one-third of the Senate remains up for re-election every two years.

In 1791, Vermont was the first state admitted following the original 13, and we just blatantly ignored this provision. Senators' initial terms were for periods fewer than six years to immediately coincide with the staggered election cycle.

The process has been the same for every state admitted since, and likely would be for DC should it too become a state. Somehow though, I doubt I'll see a column in the WSJ arguing that DC's new, likely Democratic senators should receive the full, extended terms as the Constitution requires.

But maybe that's the deeper problem. We frame constitutional debates as struggles between "constitutional originality" and "living document" approaches. Apart from that being a false dichotomy, most Americans don't reference the Constitution as a governing document or statement of principles so much as they use it as a cudgel when convenient to their own ends.

The Morality of Unity

cartoon by Benjamin Franklin 
Pennsylvania Gazette, May 9, 1754

The recent calls for unity among Republicans have exasperated liberals. Admittedly, it’s an odd gambit borne from the very same people who perpetuated divisiveness by participating in President Trump’s doomed attempt to block the counting of electoral votes.

However, looking past the irony—or blatant hypocrisy, depending on your perspective— reveals deeper moral and political failures taking place.

Many Republicans are attempting to cast unity as moral principle in and of itself. To be clear, it’s not, but the average American might be forgiven for assuming it is. After all, we are the United States of America, and we pride ourselves on our collective capacity to accomplish great things as a nation—or, as President Biden would put it, “there’s nothing we can’t do if we do it together.”

But these are statements about the efficacy of unity, not its ethicality. The Huns were no more or less united behind Atilla than the apostles were behind Christ. Both were relatively effective in achieving their goals, though we universally judge the latter as the moral exemplar.

The ethical value of unity lies in how a people are unified, the ends they achieve and the means by which they achieve them. So what are Republicans asking us to unify for and how are they going about it?

Here’s their pitch:

The Capitol riots were tragic and disturbing. The violence and lawlessness perpetrated do not reflect who we aspire to be. We have to find a way to peaceably move forward together.

I think most Americans would agree with that sentiment. Problematically, however, Republicans hope to achieve this unity in place of accountability, rather than in addition to it. To look productively toward the future requires honest reflection upon the past. Were Republicans to engage in such reflection, they could undertake good faith gestures to pursue the unification they claim to value, which would require at least acknowledging if not apologizing for the active role many took in sowing discord—particularly in perpetuating specious claims (or outright lies) about 2020 election fraud. They might even go a step further by at least conceding the legitimacy of the second Trump impeachment process now under way, even if they chose to vote for acquittal.

Instead, as these Republicans frame it, unity can only be achieved on their terms: The past is in the past. Best to forget about it—or better yet, pretend it didn’t happen—and move on.

Moreover, there’s a not-so-subtle blackmail at play. If Democrats don’t comply, Republicans will be forced to assume Democrats don’t value unity, and therefore they’ll have no choice but to adopt an obstructionist platform moving forward.

But of course that’s the point: To create a rationale for a position they’ve already decided to take for political expediency, but without moral justification. Republicans’ continued willingness to alter the rules of engagement and their ability to do so without consequence or reprimand inevitably results in democratic decay. If the only immutable rule is a Hobbesian one, that all one has is whatsoever one can obtain by any means necessary, then days like Jan. 6 won’t live in infamy. They’ll be just another Wednesday.

What is Abortion Worth?

Pro-life demonstration in Washington, January 2018
Original Image from FamilyMan88 via WikiCommons 

No political issue is more poisonous than abortion, and not because of the deep divide that exists between the pro-choice and pro-life camps, but because of how that divide infects every other issue of import.

There’s an argument among conservatives that the U.S. is a center-right country. That may be an accurate description of our elected legislatures—and increasingly of the judiciary they appoint—but less so of the electorate itself. Through a series of constitutional quirks that inhibit equal ideological representation, the U.S. has become a center-left country ruled by right-leaning officials. 

For some issues, abortion among them, the electorate is far more liberal than the legislature and the judiciary, particularly once Amy Coney Barrett was elevated to the Supreme Court.

According to public opinion polling by Pew, 61% of American believe abortion should be legal in all or most cases, compared to 38% who believe the practice should be illegal. As one might expect, the majority of Democrats (82%) lean toward legalized abortion, while most Republicans (62%) disagree. 

Looking at the issue through the lens of religion, the biggest push for reversing Roe v. Wade comes from White evangelicals and Catholics: 77% and 44%, respectively, believe abortion should be illegal in all or most cases.

I think it’s worth acknowledging here that I cannot in good conscience begrudge someone of their pro-life belief, though I may disagree with it. My views align with Caitlin Flanagan, who in a  December 2019 article for The Atlantic spoke directly to the dishonestly of the abortion debate: “The truth is that the best argument on each side is a damn good one, and until you acknowledge that fact, you aren’t speaking or even thinking honestly about the issue.”

More troubling than the divide is that we’ve stopped debating. The above numbers on abortion support/opposition are from 2019. What’s stunning is how similar the 2019 data are to 1995, in which 60% were pro-choice and 38% pro-life.

Over a quarter century the needle hasn’t moved. In that time, the pro-life contingency—conservative Christians in particular—have largely given up on arguing for the virtue of their values and instead shifted to a strategy of foisting them upon others. The aim is no longer to convince, but to coerce.

The timeline tracks with the larger Republican trend of abandoning any meaningful legislative agenda. In the mid-1990s, Speaker Newt Gingrich embraced the political power of obstructionism. During his tenure as majority leader, Mitch McConnell perfected it.

Abortion has been key in allowing Republicans to maintain power while legislatively accomplishing very little. In effect, the Republican Party has made conservative Christians their useful idiots by playing to staunch pro-lifers’ voting patterns.

Pew polls voters on issues most important to them. In the run-up to the 2020 election, the economy and health care topped the list, with 79% and 68% of Americans describing these as top concerns. Abortion came in at No. 12, with just 40% of registered voters viewing the issue as “very important.”

However, abortion has outsized weight in the voting booth. According to Gallup, 30% of pro-life voters will only support a candidate who shares their views on abortion. So, for a sizable minority of the electorate, abortion isn’t an issue: It’s the only issue. 

So long as Republican cater to single-issue, pro-life voters through legal challenges and judicial appointments, a substantial portion of their base is locked in. Republicans can then carry on enacting an agenda divorced from the concerns of not only the majority of the electorate, but likely from the majority of pro-lifers as well.

Consider again those top issues for American voters. The cornerstone of every Republican economic plan since Reagan has been tax cuts. Recently, it’s become their only economic plan. And it doesn’t work.

Health care has been met with similar vitriol. Republicans are obsessed with repealing Obama’s signature achievement, the increasingly popular Affordable Care Act, without offering a replacement plan.

Under Trump, the Republican foreign policy playbook has essentially been reverse-Obama as well. Kill the TPP. Withdraw from the Paris Climate Accord. Cancel the Iran Nuclear Deal. Ignore or downplay foreign election interference. 

On key issues like climate change, immigration reform, gun safety and racial justice, the Republicans have offered few if any substantial plans. And in the midst of a pandemic crisis, they steered stimulus talks toward gridlock by refusing for months to take up the HEROES Act for debate and revision.

It's worth noting here that the abortion rate has been in steady decline since 1980, with increased access to contraception playing a major factor. The great irony is that blue states have led the way in expanding contraception, and by proxy reducing abortion numbers, only to see Republicans rewarded for the effort. 

Of the single-issue, pro-life voters, I would ask, “What is abortion worth to you?” Based on their voting behavior, there’s only one honest answer: “Everything.”

Seems a mighty steep price.