We often hear complaints about Congressional meddling in local, District of Columbia issues. But almost nobody knows that our ninth President, William Henry Harrison, deemed such meddling unconstitutional. It turns on what “We the People” means.
Take abortion as one example. Every year a deluded Congress passes legislation prohibiting use of any local, DC tax revenue to help a poor women pay for a lawful abortion. I say deluded because Congress – where no one from DC has a vote – deems itself to be our “state legislature.” President Harrison disagreed. But no one has taken his issue to court. Casual judicial dicta implicitly assume that Congress (rather than President Harrison) is right, but neither such dicta nor presidential speeches is a real precedent.
If the Supreme Court overturns its national abortion rights precedents, leaving the matter for state-by-state legislation and litigation, will Congress decide for D.C.? Before Roe v. Wade, Congress made abortion a local felony in DC:
“Whoever * * * produce[s] an abortion * * * on any woman, unless the same were done as necessary for the preservation of the mother’s life or health and under the direction of a competent licensed practitioner of medicine, shall be imprisoned * *.” – Text of 1901 Act of Congress, as re-enacted (by Congress) in 1953 with slight modifications
In 1971, the Supreme Court sustained Congress’s enactment of this statute for DC alone (in United States v. Vuitch just before agreeing to take the Roe v. Wade petition), unaware of President Harrison’s constitutional interpretation, which would at least have invited stricter judicial scrutiny.
President Harrison explained in his inaugural address on March 4th, 1841 how Congress’s delegated power “to exercise exclusive Legislation in all Cases whatsoever” over DC as “Seat of Government” must be exercised constitutionally:
“The people of the District of Columbia are not the subjects of the people of the States, but free American citizens. Being in the latter condition when the Constitution was formed, no words used in that instrument could have been intended to deprive them of that character. If there is anything in the great principle of unalienable rights so emphatically insisted upon in our Declaration of Independence, they could neither make nor the United States accept a surrender of their liberties and become the ‘subjects’–in other words, the slaves–of their former fellow-citizens.”
Believing that the truth of his words “will scarcely be denied by anyone who has a correct idea of his own rights as an American citizen,” he went on to explain that the Constitution’s purpose in granting Congress “exclusive jurisdiction in the District of Columbia” on behalf of all the people of the United States meant “nothing more than” allowing Congress the “controlling power necessary to afford a free and safe exercise of the functions assigned to the general government by the Constitution.”
But other acts of Congress for the District alone, when not necessary to safeguard national government functions, should defer to the people of the District (rather than “the aggregate people of the United States”). In such matters, President Harrison said, Congress should defer to the “position and wants” of the people of the District in accordance with “their deliberate opinions of their own interests.” He did not discuss how to enforce his interpretation.
President Harrison knew what he was talking about. He had served as a U.S. congressman and a senator, as well as the first presidentially-appointed governor of the Indiana Territory and a our first diplomatic envoy accredited to President Simón Bolívar, liberator of a large northern territory in South America which historians later called Gran Colombia.
Moreover, his father was one of our country’s Founding Fathers whose words and example, I believe, guided his son. Benjamin Harrison V (1726-1791), owned plantations, served in the Virginia House of Burgesses and was one of seven Virginia delegates to the Continental Congress from 1774 to 1777. There he chaired the Committee of the Whole and presented the amended Declaration of Independence for adoption. He was Speaker of Virginia’s Assembly in 1781 and served as Virginia’s governor from 1781 to 1784. In 1788, he was a member of the Virginia Ratifying Convention for the Federal Constitution (joining Patrick Henry and others in opposition to concentrated federal power and lack of a Bill of Rights).
President Harrison (1773-1841) must have reflected his father’s as well as his own experience in his inaugural address (the longest ever delivered). Sadly, he died 30 days later, and never had a chance to advance practical applications of his ideas either by Congress itself or by court scrutiny of oppressive acts of Congress.
President Harrison expounded the same principles for the people of the District of Columbia, in 1841, as Georgetown Law Professor Randy Barnett does today, more generally, in an inspiring book which revisits what our U.S. Constitution means by “We the People”. His book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016) explains a long struggle between two opposing constitutional traditions in America. It fortifies my admiration for President Harrison, who objected to Congressional overreach in the District.
Professor Barnett observes that “We the People” could refer either to individual people or to a collective (such as a majority). He thinks the Founders meant “the People” as individuals. They drew on the natural rights philosophy of John Locke to recognize “unalienable” rights which precede government. In other words, governments do not create our rights. Governments do not have their own rights. They only have powers, as agents of their masters – “the People” who establish them – and who may replace them. Governments’ “just” powers come from consent of the governed.
But sovereignty belongs only to “the People” – not to Congress, not to state legislatures, not to majorities (or super-majorities) who pass statutes or even constitutional amendments. Barnett urges acceptance of these understandings of what the Founders’ words mean, acknowledging that “the question of whether the meaning of the Constitution specifically references individual natural rights is separate from the question of whether the courts are empowered to enforce that meaning against Congress or state legislatures.” Barnett traces how the U.S. Supreme Court drifted away from these original meanings which good laws, good amendments, and good revisions of prior judicial decisions might restore.
Has the time come to litigate specific issues raised by Professor Barnett and President Harrison? Most people are unaware of President Harrison’s wise solution: that DC-only acts of Congress focus on safeguarding national government functions in the District. Alas, a deluded Congress instead thinks it is the District’s state legislature.
D.C. Attorney General Karl Racine, who was elected by District voters as a servant of the People of the District, should delve into these questions in light of Professor Barnett’s and President Harrison’s inspiring insights, including ways to enforce their Constitutional interpretations.