Unratified amendments

[jimrtex]

DC Representation, they are not second-class citizens, it's a travesty they are treated as such.

There is nothing unconstitutional about giving persons living in the district electoral rights in Maryland, just as persons living on military bases can vote for the senators and representatives of the state where the base is located.

[jimrtex]

There is nothing unconstitutional about giving persons living in the district electoral rights in Maryland, just as persons living on military bases can vote for the senators and representatives of the state where the base is located.

Not necessarily. The representatives and senators of each state must be elected "by the people thereof"; the term strongly suggests that only citizens of a particular state may participate in that state's congressional elections.

But even if this hurdle is cleared, the federal government still cannot give D.C. residents voting rights in Maryland; that decision will have to be made by the Maryland government alone.

The federal government gives persons resident in other areas that the federal government has sole jurisdiction over the right to vote in the state from which the federal enclave was taken.  What is to keep Congress government from restoring the right of persons that live in the District the right to vote as Maryland citizens that they had before 1801?  If Congress makes the residents of the the District, Maryland citizens for purposes of voting for representatives, senators, and presidential electors?  Surely Maryland can not deny the right of Maryland citizens to participate in its elections.

See Findings section of HR 190.

[jimrtex]

The federal government gives persons resident in other areas that the federal government has sole jurisdiction over the right to vote in the state from which the federal enclave was taken.  What is to keep Congress government from restoring the right of persons that live in the District the right to vote as Maryland citizens that they had before 1801? If Congress makes the residents of the the District, Maryland citizens for purposes of voting for representatives, senators, and presidential electors?

As the Supreme Court established in Hepburn v. Ellzey (1805), citizens of the District of Columbia are not citizens of any state. Thus, within the meaning of the Constitution, residents of DC are not citizens of Maryland

Congress has the power to regulate national citizenship, not state citizenship. There is nothing in the Constitution authorizing Congress to declare DC residents citizens of Maryland, or of any other state.

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

You must be logged in to read this quote.

Actually, it is fully entitled do so. The right to vote cannot be denied on the basis of race, sex, failure to pay a poll tax, or age (for those over 18). It can be denied on nearly any other basis whatsoever. If a state chooses, it may disfranchise a particular geographic area; thus, Maryland may disfranchise DC.
[/quote]
The 14th Amendment doesn't apply?

[jimrtex]

On what basis are US citizens living in federal enclaves or outside the United States granted the right to vote in federal elections?

Only the states may grant residents of federal enclaves the right to vote. The federal government has no authority to compel them to do so.

The federal government has compelled the states to grant the right to vote in federal elections (both presidential and congressional) to persons who do not live in the state (recent movers or those who live overseas); to those who live in federal enclaves (which are under the exclusive jurisdiction of the federal government); and to those under 21 and over 18 (prior to passage of the 26th Amendment).

Has the federal government done this without having the authority to do so?

You must be logged in to read this quote.

The Fourteenth Amendment does not cover voting. If this were not the case, then the Fifteenth Amendment would be redundant.

In fact, Section 2 of the Fourteenth Amendment explicitly recognizes that states may deny or abridge the right to vote.
[/quote]
If Maryland were to deny the right to vote to those who live in Prince Georges County, would it be overturned on Equal Protection grounds; denial of suffrage on the basis of race; or would Maryland simply lose one representative and one electoral vote?

[jimrtex]

The Fourteenth Amendment clearly was not understood to grant anyone suffrage.

Was not then or is not now?

[jimrtex]

Has the federal government done this without having the authority to do so?

Yes, the federal government has done this without constitutional authority.

Is there any practical difference between the federal government doing something with constitutional authority, and the federal government doing something without constitutional authority that the Supreme Court has nonetheless upheld (under the pretense by the court that there was constitutional authority)?

[jimrtex]

There is nothing unconstitutional about giving persons living in the district electoral rights in Maryland, just as persons living on military bases can vote for the senators and representatives of the state where the base is located.

Not necessarily. The representatives and senators of each state must be elected "by the people thereof"; the term strongly suggests that only citizens of a particular state may participate in that state's congressional elections.

But even if this hurdle is cleared, the federal government still cannot give D.C. residents voting rights in Maryland; that decision will have to be made by the Maryland government alone.

When the District of Columbia was established (in 1790) the legislation stated: "Provided nevertheless That the operation of the laws of the state within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise provide."

Note that while deciding on the Potomac as the permanent seat of government, this bill also provided that the temporary seat of government move from New York City to Philadelphia, so there would be a period in which the district would not be used as the seat of government.

But if Congress can permit state laws to continue to operate until when Congress itself provides an alternative; then it is not obligated to ever provide an alternative, nor make those laws permanent.  Further, it may selectively provide or not provide legislation in certain areas.  Therefore, Congress may provide that Maryland election law operate in the District for purposes of the election of Representatives, Senators, and Presidential Electors; and not for other matters.

[jimrtex]

When the District of Columbia was established (in 1790) the legislation stated: "Provided nevertheless That the operation of the laws of the state within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall otherwise provide."

That is correct. One part of the district continued to operate under Virginia law, and another under Maryland law.

And it was within Congress's jurisdiction to provide that Congress define criminal law for the district, but to operate under Maryland property law, wouldn't it?  Or Congress could specify all laws but election law as it applies to Congress and presidential electors, in which case for those purposes only, the district would operate under Maryland law.

Weren't residents of Georgetown (those who qualified) permitted to participate in the election of presidential electors in 1792, 1796, 1800, and 1804?  Note: Maryland is the only state that has had popular election of presidential electors in all US elections.

You must be logged in to read this quote.

Just because Congress provides that Maryland law shall operate in D.C., it does not follow that D.C. is a part of Maryland.[/quote]
I never claimed that by providing that residents of D.C. should participate in the election of Maryland's representatives, senators, and presidential electors, that the district is (or would) become part of Maryland.  It is not a necessary condition that D.C. be part of Maryland in order for Maryland law (or portions of it) to operate within the district.

Perhaps you have a different understanding of "operation of the laws" than I do.  How does election law "operate"?   The election laws of Texas provide procedure by which persons and areas that they operate in can vote or run for office.

You must be logged in to read this quote.

If it were to provide that Arizona election law as it pertains to federal elections operated in the district, it most certainly would mean that persons living in the district could participate in the election of Arizona Representatives, Senators, and presidential electors.

[jimrtex]

If the election law of Maryland operates in D.C., then citizens vote and the ballots are counted in accordance with Maryland law. It does not mean that the person who wins this election is entitled to a seat and vote in the House of Representatives or the Senate. Someone becomes entitled to a seat not merely by virtue of state law, but by virtue of a constitutional provision.

You are interpreting "operation of election laws" too narrowly, as if all they did was define was the size of the ballot box, and the font size on ballots, and wheter a check mark is as valid as an "X".   Instead, the election laws of Maryland (with respect to federal elections) provides an entire process by which Representatives, Senators, and Presidential Electors are chosen.  Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens (both the right to run in the elections, to be counted when determining Congressional districts, and to vote in federal elections).

If Maryland were to then exclude participation by DC residents, the Congress could reject the results of the election, refusing to seat those persons that Maryland claimed to have elected.

[jimrtex]

Congress has the authority to dictate that DC residents have the right to participate in Maryland elections as if they Maryland citizens...

Congress has no such authority.

You must be logged in to read this quote.

Congress has extended the franchise for federal elections beyond that for state legislative elections.  The courts have acquiesced,  For example, prior to ratification of the 26th Amendment, the federal franchise was extended to 18 year-olds.  The Courts at the same time blocked extension to state elections.

At the present time, Congress has extended the federal franchise to persons who are not residents of the state where they exercise that franchise, and in some instances have never been resident.  And of course it has extended the federal franchise to inhabitants of those areas where Congress exercises "like authority" to that which it exercises over the capital district.

Historically, Congress has permitted residents of the district to vote in federal elections for Maryland representatives and presidential electors.  Clearly, reinstitution of this historical practice is within the discretion of the Congress.

You must be logged in to read this quote.

I do not disagree.  We are discussing the franchise in federal elections.

You must be logged in to read this quote.

Section 2 is superfluous.  The USSC has interpreted Section 1 as to prevent significant variation in the number of persons per state legislature.  Denial of the right to vote for legislatures to inhabitants of Baltimore (City) is simply a more egregious case of only permitting them to elect M legislators when a similarly populated area may elected N legislators (where N is greater than M).

You must be logged in to read this quote.

Such a law would violate Section 2 of the Fourteenth Amendment, which provides, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

The courts have deferred to Congress in the manner in which Congress executes the apportionment.

You must be logged in to read this quote.

This is a cession of jurisdiction, and was intended to prevent a recurrence of the situation where the Pennsylvania militia failed to protect the Continental Congress when it was meeting in Philadelphia.  It is not necessary to prevent district inhabitants from voting for representatives, senators, and presidential electors in order to attacks on the government itself.

[jimrtex]

But in any event, what Congress may or may not have done is irrelevant. Congress has often passed unconstitutional laws, and the courts have often acquiesced. Note, for example, the expansion of federal authority under the commerce clause. So, what Congress may or may not have done now or historically has no bearing. Only the text of the Constitution matters, and nowhere does the text allow Congress to vary the qualifications set by the states.

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators). 

Given that Congress may (consistent with the contemporary interpretation of the US Constitution) provide for the participation of DC residents in the election of Representatives and Senators from Maryland, it (modern constitutional interpretation) is clearly relevant to whether or not the Constitution is amended.

You must be logged in to read this quote.

You agree then that Earl Warren should be added to Mount Rushmore?

You must be logged in to read this quote.

It was James Madison himself who offered the amendment that Maryland and Virginia law continue to operate in the district.  There can be no reasonable interpretation that this would exclude election law as it pertained to the election of Representatives and Presidential Electors.

Why would places like Philadelphia and Baltimore have been proposed as the location for the capital district if it was understood that the people within would be denied the right to vote for Representatives?

You must be logged in to read this quote.

The 23rd Amendment does not require Congress to direct a method for appointment of electors, and the proposed legislation would simply eliminate that method (popular election) which Congress has heretefore provided, and voluntarily not appoint any electors for the district.

The majority of electors under the 12th Amendment is of those electors appointed.  If no electors were appointed from DC, then a majority would be 268/535 (assuming that all 50 states appoint their electors).

[jimrtex]

The starting point to this discussion was whether any of the unratified amendments should be ratified (One such amendment would permit DC to elect Representatives and Senators).

That is correct. However, we soon digressed towards a completely different issue: can the Congress, acting consistently with the Constitution, require Maryland to allow D.C. residents to exercise the franchise?

This was hardly a digression since having district residents voting with Maryland for Representatives, Senators, and Presidential Electors was what obviated the need for the proposed constitutional amendment in the first place.

You must be logged in to read this quote.

What James Madison might or might not have thought is entirely irrelevant. All that matters is the actual text of the Constitution, which makes it clear that states are allowed to "den[y] ... or in any way abridge" any citizen's right to vote. [/quote]
You had claimed that the founding fathers had understood that district residents would be denied federal voting rights.  If this was irrelevant, why did you bring it up.

It is a historical fact that within the lifetime of the founding fathers, residents of the District of Columbia did participate in the selection of Maryland's Representatives and Presidential Electors.  It was a discretionary act by Congress to remove that right, and it would be a discretionary act by Congress to restore that right.

You must be logged in to read this quote.

Article I, Section 4 and 14th Amendment.  While DC is not a state, its residents are United States citizens and entitled to vote for Congress and Presidential Electors.  Congress has authority to enforce the 14th Amendment.  Congress has authority to regulate the manner of electing Representatives and Senators.

Congress has in the past exercised its sole jurisdiction over the District of Columbia by permitting voters of the district to participate in Maryland's election of Representatives and Presidential Electors.  Further, it has exercised its like authority over military reservations (and other federal areas) by requiring that residents of those areas be permitted to vote in federal (and other) elections of the encompassing state.

The power to provide that inhabitants of Fort Dix vote in New Jersey federal elections is identical to that which would provide that inhabitants of the district vote in Maryland federal elections.

[jimrtex]

Article I, Section 4 and 14th Amendment.

Article I, Section 4 only allows Congress to regulate the "manner of holding Elections for Senators and Representatives." This does not give Congress the power of determining the "Qualifications requisite for Electors of the most numerous Branch of the State Legislature."

Who may vote in the election of senators and representatives is quintessential to the manner in which elections are held.  This was the basis for the USSC upholding the 18 year old in Oregon v Mitchell

You must be logged in to read this quote.

Given the modern constitutional interpretation that the right to vote is a fundamental civil right, and therefore subject to equal protection under Section 1, Section 2 is indeed a nullity.

Justice Harlan argued your position in Reynolds v Sims, in a 1 to 8 dissent.

[jimrtex]

Who may vote in the election of senators and representatives is quintessential to the manner in which elections are held.  This was the basis for the USSC upholding the 18 year old in Oregon v Mitchell

The Constitution makes it quite clear that the qualifications for voters in congressional elections shall be the same as the qualifications for voters in state legislative elections. Mitchell simply ignored Art. I, Sec. 2, Cl. 1 and Amdt. XVII, Cl. 1, and said that there could be different qualifications for the two.

The Constitution is subject to interpretation by Congress, the President, and the Supreme Court.  It holds no absolute and fundamental truths.

Congress determined that 18 year olds should be permitted to vote in both federal and state elections and passed legislation to that effect.  This was challenged by several states in Oregon v Mitchell.  Justice Black, in a 5-4 majority opinion ruled that Art. I, Sec. 4, Cl. 1 did give Congress authority to grant 18 year olds the right to vote, not withstanding what the other sections said.

You must be logged in to read this quote.

But Justice Black went on in his decision to rule that Congress did not have the authority to legislatively extend the franchise in state elections.

That is to say, Justice Black asserted that Congress may determine who may vote in federal elections, and in the very same decision asserted that Congress may not determine who may vote in state elections.

It should be noted that 4 members of the majority were willing to extend the franchise to 18YO in state elections, but they did so on the basis of the Equal Protection clause of the 14th Amendment.

You must be logged in to read this quote.

If any constitutional provision is relegated to a nullity, then the theory of interpretation that produces such a result must be incorrect. As Chief Justice Marshall said in Marbury v. Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect." [/quote]
It may not have been the intent of the authors of the 14th Amendment that the Section 2 have no practical effect, but coupled with the modern interpretation of the Constitution, it is of no more practical effect than an authority for Congress to grant letters of marque.

You must be logged in to read this quote.

At the time the 15th Amendment was passed, the right to vote would not have been understood to be a fundamental civil right.  The denial of female suffrage was upheld under a 14th Amendment challenge.  The 24th Amendment was probably not necessary since Congress has subsequently outlawed the poll tax in state elections (the 24th Amendment only applies to federal elections).  Congress was cautious due to the fact that poll taxes had previously been upheld by the Supreme Court.

The 26th Amendment was ratified after Oregon v Mitchell upheld the right to vote in federal elections, but not state elections.  Given the Supreme Court ruling, ratification was necessary to extend the right to vote to 18 YO in state elections.  Ratification received impetus because state officials did not want the complexity of administering elections with dual voting rolls as happened in 1970.

[jimrtex]

The Constitution is subject to interpretation by Congress, the President, and the Supreme Court.  It holds no absolute and fundamental truths.

So if Congress, the President, and the Supreme Court agreed that establishing the Episcopal Church is permissible, you would have no problem with their "interpretation"?

Could you elaborate on this hypothetical interpretation?

You must be logged in to read this quote.

I fail to see how this "interpretation" can be reconciled with those parts of the Constitution which provide that voters in congressional elections shall have the qualifications requisite for voters in state legislative elections. [/quote]
Does Congress have the authority to require that representatives be elected from districts, and if so, that a qualification for voting be residence in the district which you vote?

You must be logged in to read this quote.

That proves that the modern interpretation is incorrect.
[/quote]
What do you mean by "is incorrect".  Do you thing that authority of Congress to grant letters of marque has any practical effect?

[jimrtex]

Does Congress have the authority to require that representatives be elected from districts...

Yes, it does have such authority.

You must be logged in to read this quote.

No, it does not. Qualifications can only be set by the state legislature.

Doesn't that render meaningless the authority of Congress to mandate that representatives be elected from districts?

You must be logged in to read this quote.

Any "interpretation" that reduces a clause in the Constitution to not only a practical nullity, but also a theoretical nullity, is incorrect. It cannot be presumed, as John Marshall said, that any provision of the Constitution was intended to have no effect. The view that the equal protection clause makes Section 2 not only practically inapplicable, but also theoretically inapplicable; that section is reduced to absolutely nothing.[/quote]
The 15th Amendment rendered Section 2 of the 14th Amendment practically inapplicable.  Any theoretical application is more remote than Congress granting letters of marque.

If the people grading a test (ie Congress and the Supreme Court) say that the correct answer is (a); how can the correct answer be (b)?

[jimrtex]

The 15th Amendment rendered Section 2 of the 14th Amendment practically inapplicable.

Absolutely not. States were, after the Fifteenth Amendment, still permitted to deny the vote to women, pursuant to Section 2 of the Fourteenth Amendment.

This is meaningless as far as Section 2 goes.  Prior to the 15th Amendment, a state could enfranchise women and persons aged between 18 and 21, except those who were black, and suffer no apportionment penalty.

Once the 15th Amendment was passed, there was no meaningful class of people that could be discriminated against to trigger/not trigger Section 2.

You must be logged in to read this quote.

Under your argument, Section 2 would have no theoretical application whatsoever--not merely a remote theoretical application, but no application whatsoever. Section 2 can only be meaningful if states are allowed to "den[y] ... or in any way abridge" an individual's right to vote. [/quote]
Since under the modern interpretation of the equal protection clause it is impossible and impractical to discriminate against a meaningful class of persons, there is indeed no application of Section 2.

You are grasping at straws if you think Section 2 was designed to allow Maryland to abridge the right of people in Baltimore to vote.

You must be logged in to read this quote.

You are essentially making an argumentum ad verecundiam: Congress and the Supreme Court say so, so it must be so. But neither body is infallible.[/quote]
For practical purposes, it doesn't matter whether Congress or the Supreme Court are fallible, but whether their interpretation of the Constitution is generally accepted.  What is the alternative?

BTW, you didn't answer my question about whether requiring a voter to live in the congressional district where they voted was adding a qualification.

[jimrtex]

Once the 15th Amendment was passed, there was no meaningful class of people that could be discriminated against to trigger/not trigger Section 2.

The state could "discriminate" on the basis of property ownership, or payment of poll taxes, or any of a number of other criteria.

Are these a denial or an abridgement of the right to vote?  And if so, did they ever amount to such a significant share of males over the age of 21 that they could trigger a change in apportionment?

You must be logged in to read this quote.

My whole argument is that the modern interpretation of the equal protection clause is incorrect. The equal protection clause, as Justice Harlan argues in his Reynolds v. Sims dissent, was not originally understood as extending to voting rights. The evidence of the original meaning provided in this dissent is overwhelming, and is clearly supported by the text. [/quote]
Your interpretation of the equal protection clause conflicts with that of the modern (Supreme Court) interpretation.

You must be logged in to read this quote.

At the very least, the equal protection clause was not designed to prevent Maryland from abridging the right of the people in Baltimore to vote.[/quote]
But it has come to be understood as preventing such an abridgment.

Is denying the vote to the people in Baltimore consistent with a republican form of government?

You must be logged in to read this quote.

Then that is an argumentum ad populum. During the early 1900s, it was generally accepted that the due process clause protected economic liberty: does that mean that this conclusion is correct?[/quote]
It is irrelevant whether it is "correct", and it is impossible to determine whether it is correct or not, since it is a matter of opinion not subject to scientific testing.

You must be logged in to read this quote.

Congress can certainly regulate the manner in which representatives are elected. It may require that the state be divided into districts or constitutencies, each electing a single member. It may require that the state use first past the post, or approval voting, or any other such method. It may require that each voter can only cast one vote.

But it cannot determine who will or will not be qualified to vote. The extent of suffrage is, under the Constitution, supposed to be wholly and completely in the hands of the state. States may use any qualifications whatsoever, except race, previous condition of servitude, sex, payment of a poll tax, or age (if over 18), and perhaps religion as well.
[/quote]
Can Congress require that voters cast their ballot in the district that they reside?  Is that a qualification on their federal vote?

Imagine that a state has a qualification that a voter must reside in their county for one year before voting for a state representative in the legislature.  Can they deny someone who moves between counties within a congressional district even though Congress has directed that federal representatives be elected by the people of each congressional district.  That is, can the state frustrate Congress's manner of electing federal representatives?