Editor’s note: This essay was first published on the author’s blog: Res ipsa loquitur – The thing itself speaks.
‘This body and this nation has [sic] a territories and a colonies problem.’ Those words from Del. Stacey Plaskett echoed in the House chamber this week as the delegate interrupted the election of the House speaker to demand voting rights for herself and the representatives of other non-states. The problem, however, is not with the House, but with Plaskett and other members in demanding the violation of Article I of the Constitution.
After her election in 2015, Plaskett has often shown a certain disregard for constitutional principles and protections. Despite being a lawyer, Plaskett has insisted in Congress that hate speech is not constitutionally protected, a demonstrably false assertion. Where there is overwhelming evidence of a censorship system that a court called ‘Orwellian,’ Plaskett has repeatedly denied the evidence presented before her committee. When a journalist testified on the evidence of that censorship system, Plaskett suggested his possible arrest. (Plaskett suggested that respected journalist journalist Matt Taibbi had committed perjury due to an error that he made, not in testimony but in a tweet that he later corrected).
However, ignoring the free speech or free press values pales in comparison to what Plaskett was suggesting this week in nullifying critical language in Article I.
Article I, Section 2, states:
‘The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch in the States Legislature.’
The ability to vote in the House is expressly limited to the elected representatives of ‘the several states.’
Nevertheless, as the vote was being taken on the eventual election of Speaker Mike Johnson (R., La.), Plaskett rose to demand recognition and to know why she was not allowed to vote:
‘I note that the names of representatives from American Samoa, Guam, Northern Mariana, Puerto Rico, the Virgin Islands, and the District of Columbia were not called, representing, collectively, 4 million Americans. Mr. Speaker, collectively, the largest per capita of veterans in this country.’
The language of the Constitution is clear and unambiguous. Absent an amendment to the Constitution, only states may vote on the floor of the United States House of Representatives.
The presiding member asked a rather poignant question in response: ‘Does the gentlelady have a problem?’
The answer was decidedly ‘yes.’
Plaskett responded, ‘I asked why they were not called. I asked why they were not called from the parliamentarian, please.’
The response was obvious:
‘Delegates-elect and the resident commissioner-elect are not qualified to vote/ Representatives-elect are the only individuals qualified to vote in the election of the speaker. As provided in Section 36 of the House rules and manual, the speaker is elected by a majority of the members-elect voting by surname.’
Plaskett then declared, ‘This body and this nation has a territory and a colonies problem. What was supposed to be temporary has now, effectively, become permanent. We must do something about this.’
As Plaskett’s mic was cut off, she objected, ‘But I have a voice!’ as Democrats gave her a standing ovation. The media joined in the adoration, including The Atlantic magazine, which referred to her as ‘Congresswoman Plaskett’ rather than a delegate.
There is no question that the Virgin Islands have a high percentage of veterans for its population (which stands at only 104,000). It is also a cherished part of our country. But it is not a state.
Plaskett was demanding a floor vote for herself and delegates from American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and Washington, D.C.
These delegates are currently allowed to vote only in committees. The House is permitted to grant such authority since these delegates are not actually voting on the final language or adoption of legislation.
What Democrats were supporting was to allow votes on the House floor, which would have collapsed the bright-line rule that has governed the body for decades. It would also have effectively removed the language referencing ‘states’ from Article I, Section 2, without a constitutional amendment.
This is why Plaskett’s ‘problem’ goes further than simply the selection of the Speaker.
The Democrats have long argued that delegates should be allowed to vote as full members, starting with the D.C. delegate. I have written previously on that issue in academic publications. See, e.g., Jonathan Turley, Too Clever By Half: The Partial Representation of the District of Columbia in the House of Representatives, 76 George Washington University Law Review 305-374 (2008). I also testified at the prior congressional hearings (here and here and here) and written columns (here and here) on why I considered the bill to be flagrantly unconstitutional.
It is neither pleasant nor popular to raise such constitutional objections. I received heat after one Senate hearing in which Del. Eleanor Holmes Norton told the senators that, if they were going to vote against this bill, ‘do not blame the Framers, blame Jonathan Turley.’ However, the problem has always been the curious constitutional status of these districts and territories.
The language of the Constitution is clear and unambiguous. Absent an amendment to the Constitution, only states may vote on the floor of the United States House of Representatives.
The problem is not, as claimed by Del. Plaskett, with ‘colonies.’ The Virgin Islands is not a ‘colony.’ It can, at any time, move to become an independent nation. Otherwise, the American people would have to vote for this tiny island to be a state. Either way, citizens will choose the status of the island.
The Democrats giving Plaskett a standing ovation would have presumably added half a dozen new votes for non-states. The call would likely then be for the addition of some representation in the Senate. That would certainly give the Democrats control of the House, but it would allow a fluid definition of what constitutes a representative — a definition that could be manipulated in the future by the majority to maintain their control of the House.
The vote for speaker illustrates the problem. Short a couple of votes, the Democrats were demanding the recognition of new forms of representatives to elect Minority Leader Hakeem Jeffries of New York. Presumably, a future House could then remove the votes to achieve the same advantage. It could also recognize other territories to increase voting margins. (Notably, some liberal professors have also suggested dividing blue states to simply multiply Democratic votes in the Senate. That would be constitutional if it was allowed by Congress).
The call to create new forms of voting members on the House floor is consistent with the ad hoc measures in other areas. For example, despite opposition from the public, Sen. Elizabeth Warren, D-Mass., and others have pushed to simply pack the Court with a majority of liberal justices to support their agenda.
The public’s opposition to court packing has not deterred the Democrats. In the same way, unable to secure a majority of citizens to support D.C. statehood, the Democrats previously sought to create a voting member without a constitutional amendment or change in status.
This week, they would have accomplished that result not just for Washington, but other non-states, including the Northern Mariana Islands, a commonwealth covering only 180 miles with a population of less than 50,000.
We have the oldest and most stable constitutional system in the world precisely because we have resisted improvisational or ad hoc measures to achieve political ends. The Constitution is a common article of faith that transcends our passing or petty divisions. These demands for constructive constitutional amendments are the voices of the faithless.
To paraphrase Shakespeare’s Julius Caesar, ‘the fault dear [delegate] lies not in our [states] but in ourselves.’