- The Washington Times - Friday, March 24, 2000

Homonymic jurisprudence, the last refuge of a lawyer naked of sensible arguments.
That exotic canon of construction failed before a three-judge federal district court last Monday in Adams vs. Clinton, which denied that the District of Columbia is a state of the United States constitutionally entitled to elect representatives and senators to the United States Congress. What astonishes is not the defeat of the outre interpretive theory, but that dissenting Judge Louis Oberdorfer battled for its triumph.
As the perspicacious Alex De Tocqueville observed in "Democracy in America" more than 150 years ago, virtually every political question in the United States morphs into a lead-footed lawsuit. Residents of the District of Columbia have clamored without result for two centuries seeking statehood or representation in Congress through a constitutional amendment or federal statute. A non-voting delegate in the House of Representatives has been their consolation prize.
Confronting formidable opposition to their political quest, scores of grandees, fait de mieux, filed a complaint before a three-judge federal district court insisting that the United States Constitution crowned District of Columbia residents with a right to elect members to the House and Senate. The subtext of their claim pivoted on a homonymic theory of constitutional interpretation namely, that words in our sacred charter change their meaning over time while their spelling and sound remain the same.
That audacity was necessitated because the Constitution is as unequivocal as Euclidean geometry in withholding from the District the trappings of statehood for purposes of federal representation. The following are illustrative, but far from exhaustive.
Article I, section 8, clause 17 entrusts to Congress "exclusive legislation in all cases whatsover" over the District of Columbia. That exclusivity, as James Madison elaborated in Federalist 43, was indispensable to prevent a parochial state from embarrassing or interrupting the federal government and engendering jealousies among sister states. In 1783, a band of soldiers had insulted the Congress, and treated the sovereignty of the United States with indignity. An application to the host state for protection, Pennsylvania, proved unavailing.
Article I, section 2 prescribes that voters for the House of Representatives in each state "shall have the qualifications requisite for electors of the most numerous branch of the state legislature." The District of Columbia, however, has never sported a state legislature, whose function is performed by Congress.
Article I, section 2, clause 4 tasks the "Executive Authority" of a state to issue writs of election to fill a vacancy in the House from that jurisdiction. The District of Columbia, however, enjoys no discrete executive authority. Plenary power is in the hands of Congress.
Before the 17th Amendment, Article I, section 3 provided for the election of two senators from each state by the state legislature, but the District features no such body. If it were treated as a State, Congress would itself have chosen its senators, a practice never even entertained. The District without protest has been denied treatment as a state for purposes of ratifying proposed amendments to the Constitution or calling a constitutional convention.
The Founding Fathers would have perceived no novelty in withholding from District of Columbia residents a constitutional right to vote for House or Senate members, although it mocked the Revolutionary War creed of "no taxation without representation." The disfranchisement of slaves and women was also permitted, and the former degraded as mere chattels. Territories of the United States elect no voting members to Congress unless statehood is achieved. At present, jurisdictions such as Puerto Rico, Guam, and American Samoa enjoy no voting representation in Congress.
The unbroken understanding that the original Constitution did not envisage the District as a state for purposes of federal elections was the premise of the 23rd Amendment ratified in 1961. It entitles the District to select presidential and vice presidential electors "equal to the whole number of senators and representatives in Congress to which the District would be entitled if it were a state."
Finally, arguments for District representation bottomed on government by the consent of the governed failed to sway the Founding Fathers. For instance, Thomas Tredwell at the New York ratifying convention protested that "The plan of the federal city … departs from every principle of freedom … subjecting the inhabitants of that District to the exclusive legislation of Congress, in whose appointment they have no share or vote." And Alexander Hamilton proposed a constitutional amendment to grant District residents voting rights in federal elections, a proposal that died.
The rule of law would shatter if judges changed the meaning of constitutional or legislative language through free-floating homonymic interpretations as was urged in Adams vs. Clinton. Even lofty political causes do not justify such a judicial abuse.


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