Posted by Eugene Volokh:
Selective Appeals to Constitutional Decisions:
A reader objects to my [1]D.C. statehood post by writing:
While the District of Columbia certainly has a lower population
than most states, this is immaterial to the question of whether or
not it deserves statehood. After all, Wyoming's population is even
lower than that of D.C. Should Wyoming's senators be fired, and
their duties delegated to those of, say, Colorado? The idea that
states, regardless of population, are guaranteed a certain basic
level of representation is controversial, but it's been the law of
the land since the Sherman compromise was enacted. All other states
are subject to that compromise; it would be quite unfair to treat
D.C. differently.
I had thought I'd responded to this in my original post by saying "Ah,
some may say, but the two-senators-per-state rule is an unfairness
that's built into the Constitution. Indeed it is. But so is the
no-senators-for-D.C. rule; both are constitutional rules." But let me
elaborate on this further: The reader is trying to rebut my "unfair to
give D.C. two senators" argument by appealing to the constitutional
judgment that all states have two senators. If that works, though,
then one can equally rebut the "unfair to deny D.C. senators" argument
by appealing to the constitutional judgment that D.C. lacks senators.
Thus, one might argue:
While the District of Columbia certainly has a population, this is
immaterial to the question of whether or not it deserves statehood.
The idea that D.C., regardless of population, is excluded from
representation is controversial, but it's been the law of the land
since the Constitution was enacted.
Of course, one could say that the mere fact that something is in the
Constitution doesn't make it right: The denial of representation to
D.C. residents is no longer necessary, and is unfair; the Constitution
should therefore be changed to remedy this unfairness.
But then one should also pay attention to the argument that the
two-senators-per-state rule is unfair, even though it too is part of
the Constitution. One should try to come up with a remedy that's as
fair as possible to big-state residents. One shouldn't remedy unfair
underrepresentation for D.C. with unfair overrepresentation, and
defend this remedy simply by arguing that the unfair
overrepresentation is consistent with the Constitution (since after
all the unfair underrepresentation is equally consistent with the
Constitution).
And the fairest remedy, I argue, is not to give D.C. residents two
Senators, but rather to give them a say in the election of a
neighboring state's (e.g., Maryland's) two Senators.
References
1. http://volokh.com/archives/archive_2005_04_17-2005_04_23.shtml#1114114842
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
