JONATHAN TURLEY: A member of the House of Representatives shows her confusion about the Constitution
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Editor’s note: This essay was first published on the author’s blog: Res ipsa loquitur – The thing speaks for itself.
“This body also has this nation [sic] the problem of territories and colonies.” Those words echoed on the floor of the House of Representatives from Del. Stacey Plaskett this week when a delegate interrupted the election of the Speaker of the House of Representatives to demand the right to vote for himself and representatives of other non-states. The problem, however, is not with the House, but with Plaskett and other members in seeking violations of Article I of the Constitution.
After the 2015 election, Plaskett often showed a certain disregard for constitutional principles and protections. Although I am a lawyer, Plaskett insisted in Congress that hate speech is not constitutionally protecteddemonstrably false claim. Where there is incredible evidence of a system of censorship that the court called “Orwellian,” Plaskett has repeatedly rejected evidence presented before its committee. When the journalist testified about the evidence of this censorship system, Plaskett suggested his possible arrest. (Plaskett suggested that respected journalist journalist Matt Taibbi committed perjury because of a mistake he made, not in testimony, but in a tweet he later corrected).
However, ignoring the value of free speech or a free press pales in comparison to what Plaskett suggested this week in striking down Article I’s critical language.
Article I, Section 2, states:
“The House of Representatives shall be composed of members chosen every other year by the people of the several states, and the electors in each state shall have the qualifications necessary for the electors of the most numerous branch in the state legislature.”
The ability to vote in the House of Representatives is expressly limited to elected representatives of “multiple states”.
Nevertheless, as the vote was taken on the final choice of President Mike Johnson (R., La.), Plaskett stood up demanding recognition and learned why she was not allowed to vote:
“I note that the names of the representatives from American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands and the District of Columbia, which represent, together, 4 million Americans. Mr. Speaker, together, the largest per capita veteran population in this country, were not called.”
The language of the Constitution is clear and unambiguous. In the absence of an amendment to the Constitution, only the states can vote in the United States House of Representatives.
The chairman answered a rather sharp question: “Is there a problem miss?”
The answer was a resounding yes.
Plaskett replied: “I asked why they weren’t invited. I asked why they weren’t invited by the parliamentarian, please.”
The answer was obvious:
“Elected delegates and elected commissioner are not qualified to vote/ Elected representatives are the only persons qualified to vote in the election of the Speaker. As stated in Section 36 of the Rules of the House and the handbook, the Speaker is elected by a majority of the elected members who vote by surname.”
Plaskett then stated, “This body and this nation have a problem with territory and colonies. What should have been temporary has now, in fact, become permanent. We have to do something about it.”
When Plaskett turned off the microphone, she protested, “But I have a voice!” while the Democrats gave her a standing ovation. The media, including The Atlantic magazine, also joined in the worship directed to her as “Congressman Plaskett” and not as a delegate.
There is no question that the Virgin Islands have a high percentage of veterans relative to their population (which is only 104,000). It is also a valued part of our country. But it is not a country.
Plaskett demanded a vote for herself and delegates from American Samoa, Guam, the Northern Mariana Islands, Puerto Rico and Washington, DC
These delegates can currently only vote in committees. The House is allowed to grant such powers since these delegates do not actually vote on the final language or passage of the bill.
What Democrats supported was allowing a vote in the House of Representatives, which would collapse the clear-line rule that has governed the body for decades. It would also effectively remove the language referring to “states” from Article I, Section 2 without a constitutional amendment.
Because of this, Plaskett’s “problem” goes beyond simply selecting a chairman.
Democrats have long argued that delegates should be allowed to vote as full members, starting with the D.C. delegates. I have already written about this issue in academic publications. See e.g. Jonathan Turley, Too Smart by Half: Partial Representation of the District of Columbia in the House of Representatives76 George Washington University Law Review 305-374 (2008). I have also testified at previous congressional hearings (here and here and here) and written columns (here and here) about why I consider the bill to be flagrantly unconstitutional.
It is neither comfortable nor popular to make such constitutional objections. I was angry after a Senate hearing in which Del. Eleanor Holmes Norton told senators that if they were going to vote against this bill, “don’t blame the Framers, blame Jonathan Turley.” However, the problem has always been the unusual constitutional status of those districts and territories.
The language of the Constitution is clear and unambiguous. In the absence of an amendment to the Constitution, only the states can vote in the United States House of Representatives.
In this picture from the video Del. Stacey Plaskett, D-Virgin Islands, speaks during the second Senate impeachment trial of former President Donald Trump at the U.S. Capitol in Washington, Wednesday, Feb. 10, 2021. (Senate Television via AP )
The problem is not, as Del claims. Plaskett, in “Colonies.” The Virgin Islands are not a “colony”. At any moment, she can start an independent nation. Otherwise, the American people would have to vote for this tiny island to be a country. In any case, the citizens will choose the status of the island.
The Democrats who applauded Plaskett would probably add half a dozen new non-state votes. The call would then likely be to add some representation in the Senate. That would certainly give Democrats control of the House, but it would allow for a fluid definition of what constitutes a representative — a definition that the majority could manipulate in the future to maintain its control of the House.
Voting for the Speaker illustrates the problem. Lacking a few votes, Democrats demanded recognition of new forms of representation to elect Minority Leader Hakeem Jeffries of New York. Presumably, a future home could remove votes to achieve the same advantage. It could also recognize other territories to increase voting margins. (Notably, some liberal professors have also proposed splitting blue states to simply multiply Democratic votes in the Senate. This would be constitutional if Congress allowed it).
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The call for the creation of new forms of voting by members in the House of Representatives is in line with ad hoc measures in other areas. For example, despite public oppositionSen. Elizabeth Warren, D-Massachusetts, and others have pushed to simply fill the Court with a majority of liberal justices to support their agenda.
Public opposition to court packing did not deter Democrats. Likewise, unable to secure a majority of citizens to support DC statehood, Democrats previously sought to create a voting member without a constitutional amendment or change of status.
This week, they would achieve that result not only for Washington, but also for other non-states, including the Northern Mariana Islands, a community covering only 280 miles with a population of less than 50,000.
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We have the oldest and most stable constitutional system in the world precisely because we resisted improvisation or ad hoc measures to achieve political goals. The Constitution is a common article of faith that transcends our fleeting or petty divisions. These demands for constructive constitutional amendments are the voices of unbelievers.
To paraphrase Shakespeare’s Julius Caesar, “mistake dear [delegate] it lies not in ours [states] but in ourselves.”
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