Dealing Cynically with the U.S. Constitution

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 Jr. is a politician and sociologist who served as a Democratic majority leader of the Rhode Island Senate. His books include "Can a Catholic Be a Democrat?: How the Party I Loved Became the Enemy of My Religion" and "The Decline and Fall of the Catholic Church in America." Carlin is a current professor of sociology and philosophy at the Community College of Rhode Island at Newport.

  • Will

    Both parties have been trampling the Constitution for many years. Roe vs. Wade was unconstitutional, as it violated the 10th Amendment, and threw out the laws on abortion of all fifty states. Laws which had been passed by elected state legislatures and had in many cases withstood court tests. All thrown out in one fell swoope, a huge imposition of the Federal Government on the rights of the states. The Bush Administration has also trampled the Constitution, with “No Child Left Behind” an imposition of the Federal Government into Education, which has been the province of the states, and also, the stupid “war on drugs” whereby the DEA has harassed medical marijauna people in California, who are allowed by State law to grow and use marijauna for relief of pain, etc. I know a lot of so called “conservatives” supported the Bush Administration in areas like this, but they are wrong and should be concerned about an all powerful Federal Government, trying to run our lives in every way imaginable.

    The Federal Government has gotten too big and too out of control. Obama is not the man to roll it back, unfortunately.

  • Mark Rutledge

    The crux of the matter is the Supreme Court’s modern habit of dipping it’s toe into the oligarchical swamp. If not for that, Congress would have a real and effective check on initiatives such as DC statehood. As opposed as I was (and still am) to NCLB, and as agnostic as I am on the legalization of marijuana, neither apply to the issue at hand. Indeed, if anything these issues are the consequences of previous cconstitutional “legislation” by the Supreme Court. The average American doesn’t realize how serious this is. Radical liberalism has never enjoyed a majority in national political philosophy (indeed, never even close), yet that agenda has slowly and inexorably been enacted through judicial activism. Whether one self-identifies as a conservative or moderate, it is in our best interest to fight this tooth and nail. The battleground is not only comprised of Supreme Court nominations, but nominations to the federeal benches as well.

  • Will

    Mark, yes, Liberals have been able to get their agenda adopted via the Federal Courts, in lieu of the legislative route, due to the fact, that much of what they advocate would never make it through a legislature, elected by the citizens, subject to robust debate, etc. Don’t forget the executive power grab by both parties either. The Imperial Presidency, begun by Lyndon Johnson, carried through to George W Bush. Congress has become a joke, the very weak third branch of government, concerned only with pork and re-election. The Senate is a nursing home, populated by geriatric pork meisters, such as Robert Byrd, Ted kennedy, Arlen Specter, etc.

    The Federal Government needs to be reigned in, however, neither party is willing to do it. The Democrats complained about the “Imperial and arrogant Bush” and now we have the imperial and arrogant Obama.

  • Sam

    “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.”

    Dr Carlin,

    Your question above presumes Obama actually cares about the Constitution he swore to uphold, protect, and defend. If you remember, in a 2001 NPR interview in Chicago, then Professor Obama said the Constitution was “fundamentally flawed” because it didn’t include Marxist notions of economic justice in its Bill of Rights. If he had such a problem with it then, why did he raise his right hand on Jan 20th and swear to uphold, defend, and protect it? I think the answer is, he intended to transform it into the Marxist document he theorized about in 2001. It is only a means to an end of cementing his regime like Hugo Chavez is doing in Venezuela.

  • Jeff Stone

    Unfortunately, there is little to do when we as a people realize our Constitution is trampled upon.
    We are all well aware of the fact that the masses elect to offices of power those that pander to them. Especially when it comes to handouts, subsidies and tax breaks.

    So, I have come to these conclusions.(admittedly very pessimistic, and more out of anger than how I will continue to live and teach my children)

    There is no better place to go to.

    And, we all know that this is a club you are not allowed to leave without a full and total war being waged upon you.

  • Sid

    We ain’t got no constitution.