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Back to Reply to Questions by Cooper, Harris, and Richards

George S. LaRoche, Reply to 
Response to Questions about the DC Equality Amendment by 
Timothy D. Cooper, Charles Wesley Harris, and Mark David Richards
June 11, 2002




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Thank you Tim, Mark, and Mr. Harris (since I don’t know you personally and resent the false sincerity of talk-shows, I feel compelled to use a more formal address) for your detailed defense of your proposed Equal Rights Amendment. It’s refreshing to see a detailed and concise argument.

But I must still take issue with the proposal and I must start with your assertion that your proposal “is based on a proposition that no American can credibly argue against[.]” It’s really quite unfair to incorporate a test of  “Americanism” or personal political belief into your argument as a precondition of debating it. Perhaps you didn’t realize that this is what you were accomplishing with this statement, but that’s what it means. Let’s try to avoid such ad hominem tests of credibility, loyalty, or political persuasion as preconditions to engage in this debate.

Indeed, one can easily challenge your proposal precisely because it threatens the very same “core American values” you specify as the foundation of the proposal – “Equal rights and the freedom to enjoy a government that derives its just powers from the consent of governed.” Nothing which institutionally segregates a discrete minority from their neighbors and makes their rights or privileges hang on a complex and abstract mechanism (which will depend entirely on the ability of lawyers to enforce it for this discrete population) can be said to advance the “equality” of the minority with the majority. Further, while this proposal is admirably detailed, it does not provide the degree of self-government based upon the consent of the governed, as you suggest.

I’m surprised you, Tim and Mark, with whom I have worked on statehood-related activities, say that statehood is a “strateg[y] that do[es] not fit the realities of present-day circumstances,” but perhaps you are correct – I’m not an economist, so just don’t know (though I’ve interviewed several economists who apparently are well-equipped to address these issues and many have said that the problems your identify are not prohibitive of statehood). At any rate, your points – and your questions at the end of your defense challenging statehood supporters to address these fiscal and administrative problems – indicate a conviction that these problems are not just passing conditions for the District, so I take it you consider them intrinsic to the situation of the District. Especially if this latter conviction is true, then your points that statehood is unrealistic are really arguments for retrocession of the District to Maryland. While retrocession is far less desirable than statehood, it would result in all the same benefits you claim would flow from the Amendment, without the problems I have identified previously and here. So I wonder why don’t you support retrocession, since you feel statehood is such a bad idea? But like you, I would like to know the answers to your questions regarding these fiscal questions – perhaps someone can address them.

Generally, you say that “the current predicament of the District cannot be viewed in a legal vacuum,” although this is just what you have done. You are wholly focused on the political and economic issues which you think mean the District is incapable of governing itself, and you are wholly focused on the rights you are denied, so you wholly ignore the constitutional structures through which we govern ourselves and you ignore the substantive and procedural legal problems with your proposal, both in terms of its genesis, its possible meaning, and its enforcement (to which I will return in a moment) and, especially, in terms of how this proposal alters the structural relationships in our federal system and how it fails to make the District an actual part of that federal system, which is the business of constitutional analysis.

So, to put this in context in a legal universe, we should note first that constitutions are not primarily about rights. They are blueprints for government (in fact, they were originally called “forms of government”). They define the institutions which govern us. Insofar as history teaches the governments need restraints, constitutions have come to include specifications of rights not to be transgressed. But those specifications are ancillary to the definitions of the institutions of government and the various guarantees of rights are both structurally and procedurally enforced with relation to those structures of government.

In contrast, your proposal is written in political language, heralding highly abstract rights (all of which are subject to heated debate as to their extent and proper expression, not to mention debate as to whether they even exist) and abstract equations (for instance, it defines the scope of congressional power over the District with reference to the National Capital Service Area, a place itself defined by congressional legislation, so Congress can change it, and foreign embassies and missions, which are places defined by title ownership and use, so changeable by the owners at will). Assuming you’re prepared to pay for the enforcement of this Amendment, it would be a lawyer’s gold mine, given the remarkably vague terminology and the use of generalized and completely abstract concepts.

Turning to your responses to my previous questions. I appreciate the detailed exposition of Brazil’s constitutional provisions, but it misses my previous point entirely. It’s not a matter of how comprehensive the text is. In fact, the more comprehensive the text appears to be, the less clear it is. The absurdly detailed content of Brazil's provision highlights this very point.

No provision of any constitution is “self executing.” In other words, the fact that the text is in the document doesn’t mean that the subject matter of the text will follow in reality. Consider the “free speech” Clause of the First Amendment to our Constitution: “Congress shall make no law . . . abridging the freedom of speech, or of the press[.]” Nothing could be clearer, no? But Congress and most other governments have passed innumerable laws which have been taken to transgress this plain prohibition. Thousands of law suits and criminal cases have been brought in which this remarkably plain and simple language has been interpreted and “explained.”

So if you think that ratification of your relatively complex proposal will be the end of it, I’m afraid you’re mistaken. The citizens of the District would spend countless hours in court, costing countless hundreds of thousands of dollars, to enforce the Amendment. And this is more or less what has happened in Mexico and Brazil (I don’t know as much about other federal capitals); the residents of those federal capitals are forced to work very hard to enforce their ostensible “rights” and, as a practical matter in the long run, they are still in a far inferior position to that of all other residents of their respective countries.

Your proposed Amendment is over three hundred words, which would make it one of the longer passages in the Constitution (assuming Congress would pass the entire text, in your proposed form, which I’ve already noted is unlikely to happen). And unlike almost all other passages, it would be of concern only to District residents, so we would not benefit from the 
efforts of other groups to enforce it, which is the case for the “free speech” Clause, which is litigated from sea to shining sea. Did you notice when, several weeks ago, a federal court in Oregon ruled that the Attorney General of the United States could not interfere with Oregon’s state law allowing physician-assisted suicide? The other forty-nine states didn’t have to be part of that case to get the benefits of it, but even under your Amendment, D.C. would find itself in court to defend what I take it would be an ostensible right to the same status, simply because power will try to evade a blockage whenever it can, just as Attorney General Ashcroft sought to intervene in Oregon’s local affairs in the first place. The fact that 
the District’s status would remain separate means that no amount of language will protect it from being treated as separate, at least until a court ruled otherwise (and will all willing to pay for the legal work to reach this result please send me an email so I can compile a resource list, because my peers and I will be the ones called upon to do the work, when it comes, and we’d like to know that anyone supporting this proposal will put their money where their choices are).

Turning to another point, you discard my argument that your amendment would require further amendments in the future when and if it became desirable to change the status of District residents yet again, saying I “completely ignore[ ] the existence of the 23rd amendment[.]” But your argument completely ignores the fact that the 23rd amendment does not define the status of the District or its residents, while your amendment does just that. It’s commonly assumed that the 23rd Amendment says that, for the purposes of election of the President, the District “shall be treated as a state.” This is incorrect. It does not say that, even if that’s the general effect of the Amendment. The 23rd enacts an ancillary 
institutional device hanging onto the side of the primary institution for election of the President and District residents can take advantage of this ancillary device. In contrast, your proposal creates novel definitions of the identity of the residents of the District of Columbia and creates novel definitions of Congress’s power over the District. Your amendment, therefore, would be a different sort of creature than the 23rd, and it would therefore have more troublesome consequences. Insofar as Adam Kurland is correct that the 23rd would create serious problems if the District were made a state without repeal of the 23rd, the reasons for his conclusion with regard to the 23rd are even stronger and more absolute when applied to your proposal, because your proposal creates special constitutional entities in their own right.

Also, a couple points for clarification: in responding to what you refer to as my “purely legal commentary,” you refer to “aforementioned legal, political and economic barriers to statehood[.]" I can find the political and economic reasons you think make the District incapable of governing itself, but I can't find the “legal barriers” to which you refer. Could you please be more specific? What are the “legal” barriers to statehood?

And how could any legal barrier to statehood be higher than the “ratification barrier” to your proposal? By this I mean that every state would have to ratify it, in order for the Amendment to include representation in the Senate (which you appear to desire), because of the last Clause in Article Five of the Constitution.

Also, you state that Professor Adam Kurland “maintains that Congress cannot simply pass legislation granting DC Citizens voting rights in Congress.” In fact, Adam doesn’t make this argument in his law review article. Rather, he makes the point that if Congress confers statehood without repealing the 23rd amendment, there would be serious and undesirable consequences, so Adam seems to admit from the outset that Congress can simply pass such legislation – it’s the possibility against which he argues.

And finally, assuming for the sake of the argument that your proposal would do what you claim it would do, please explain why you think Congress would pass the precise amendment you propose, instead of reworking it to make it inferior to what you propose.

As you might expect, I could go on, but I think that I’ve touched on most of the major points which indicate to me that your proposal is not a promising “remedy to win equal political rights” and that it would entail some serious problems for the District.

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