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.
David Cohen says
David, thank you for your typically thoughtful–and historically insightful–essay. Would that Congress could distinguish between “national government functions” in D.C. and measures only for D.C. residents.
Diana Hart says
Dr Vuitch’s address and phone number was well known to my cohort of women in the 60’s. Thank you, Dr. Vuitch.
Green Eyeshades says
William Henry Harrison died one month after his inauguration. He accomplished nothing as President. Most of his reputation derived from slaughtering Native Americans in major battles.
https://www.britannica.com/biography/William-Henry-Harrison
The details of the disease that killed President Harrison are quite revolting.
https://www.nytimes.com/2014/04/01/science/what-really-killed-william-henry-harrison.html
David Jonas Bardin says
President Harrison’s 1841 prose and timeless human rights reasoning deserve our careful attention in 2018:
“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. If this be true–and it will scarcely be denied by anyone who has a correct idea of his own rights as an American citizen–the grant to Congress of exclusive jurisdiction in the District of Columbia can be interpreted, so far as respects the aggregate people of the United States, as meaning nothing more than to allow to Congress the controlling power necessary to afford a free and safe exercise of the functions assigned to the General Government by the Constitution. In all other respects the legislation of Congress should be adapted to their peculiar position and wants and be conformable with their deliberate opinions of their own interests.”
— President William Henry Harrison, inaugural address, March 4, 1841
Green Eyeshades says
The original posting praises author Randy Barnett, who is a Georgetown law professor and a libertarian with (or formerly with) the Federalist Society and the Cato Institute, according to this Wikipedia entry:
https://en.wikipedia.org/wiki/Randy_Barnett
It is important to understand what a fringe extremist Barnett is, in order to understand that his book is deeply destructive to the rights of the majority of District residents. According to the Wikipedia entry above, Barnett supports and advocates the following ten amendments to the U.S. Constitution:
“The amendments, summarized by number below, would do the following;
“Disallow federal income taxes (repeal Sixteenth Amendment), as well as gift, estate, and consumption taxes; allow FairTax; require a three-fifths supermajority to raise or set new taxes
“Set limits on the Interstate Commerce Clause
“Disallow unfunded mandates and conditions on funding.
“Close a constitutional loophole that allows treaties to override established limits on power
“Extend free speech consideration to campaign contributions and to cover any medium of communication (including the Internet)
“Allow a resolution of three fourths of the states to rescind any federal law or regulation.
“Establish term limits for Senators and Representatives.
“Provide the President with a line-item veto to balance the budget on any year in which it is unbalanced.
“Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
“Restrict judicial activism by mandating an originalist method of interpretation.”
Those are some of the most reactionary ideas in American politics. They would destroy the financial and legal basis for the federal government, by wiping out federal income tax revenues and estate tax revenues (read the Wiki for the internal details). They would turn the entire United States into Kansas, which crippled its own ability to raise taxes by requiring super-majority votes of its legislature to raise any tax. Kansas just endured a state-wide revolt of its teachers whose schools had suffered grievous injury for decades, and for the first time this century raised state taxes to fund public schools. That’s what Randy Barnett wants to do to District residents, freeze all tax revenues so public employees would gradually be bankrupted by low wages & deteriorating schools.
Barnett’s proposed amendments would also put chokeholds on the federal government’s power to appropriate funds. They would allow millionaires & billionaires to buy all politicians. They would hobble the Congress, by forcing out the most experienced & effective members. They would turn our constitutional system on its head, by allowing states to dictate to the federal government on the terms of administrative law. Barnett’s amendments are founded on a fundamental disdain for administrative law, which has been the basis of American governance for generations.
Nobody who believes in freedom and equality for all Americans; or who thinks that the federal government should have the power to adopt rules & regulations to protect minorities from discrimination, to protect the environment from industrial pillage, and to protect workers from being robbed by employers; or who thinks that the United States was born in a struggle against the tyranny of kings & wealthy foreign interests, would come within a mile of Randy Barnett’s amendments.
David Jonas Bardin says
When one applauds one or more published ideas, he or she does not thereby endorse every other idea that author has published. My article did not support any constitutional amendments. It does applaud understanding “We the People” to mean each of us as individuals, including us in D.C. — not a collective of all of us or a majority of us (much less majorities everywhere else, in all 50 states and 435 congressional districts). That includes individuals threatened with incarceration. Individuals in D.C. as well as everywhere else (at extraordinary rates generally and especially for African-American people). To achieve justice for all, why not invoke the existing Due Process clause vigorously even to assert “substantive” due process rights, as Professor Barnett’s book suggests? If you disagree, let’s debate that.
We probably all have both bad and good, dumb and smart ideas. Our goal should be to pick out good and smart ideas, evaluate and debate them, instead of attacking their messengers for other ideas.
I may further reply (as to Harrison’s life as well Barnett’s book).
For now, take heart from Rutgers Law Professor Katie R. Eyer and her stunning new exposé:
“The modern constitutional law canon fundamentally misdescribes rational basis review. Through a series of errors—of omission, simplification, and recharacterization—we have largely erased a robust history of the use of rational basis review by social movements to generate constitutional change. Instead, the story the canon tells is one of dismal prospects for challengers of government action—in which rational basis review is an empty, almost meaningless form of review.” Her 2017 Notre Dame Law Review article, “The Canon of Rational Basis Review”, is available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2922546
Green Eyeshades says
The original post mixes and matches random remarks by a President in a political speech with judicial rulings by the Supreme Court of the United States (SCOTUS) and a book by an extremist libertarian.
The whole post starts off with a correct assertion at the end of paragraph two, by observing that “neither such dicta nor presidential speeches is a real precedent.”
But then in paragraph four, the original post veers off into the weeds and never returns to common sense. Here is paragraph four in full:
“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.”
In the jurisprudence of SCOTUS, there simply is no such thing as a President’s “constitutional interpretation.” Nothing in a President’s inauguration speech has any weight as an “interpretation” of the constitution. Since the famous and fundamental case of Marbury v. Madison** decided by SCOTUS in 1803, it has always been the province of the courts “to say what the law is.” Presidential speeches just have nothing at all to do with interpreting the law.
This whole post is just a smokescreen to leak libertarian propaganda into the pages of Forest Hills Connection. It is meritless.
** Here is the key holding of Marbury v. Madison, which libertarians like Randy Barnett seem to want to erase or ignore:
“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
“So if a law be in opposition to the Constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”
http://www.constitution.org/ussc/005-137a.htm
David Jonas Bardin says
Thank you for your criticisms. I shall weigh them in preparing my next piece.
However, your Comment rests on too narrow a view of constitutional interpretation.
1) As in my previous reply, I strongly recommend Professor Katie Eyer’s recent article from which I learned so much about actual interpretations by numeros federal and state judges and legislators. — in addition to SCOTUS interpretations. She teaches me what my university courses withheld. I think you will like it.
2) Many constitutional issues never reach SCOTUS (for a “final” word by justices). In the meantime, constitutional issues are debated by legislators (federal, state, municipal), and by executives who sign or veto legislations, and by thousands of federal and state judges.
3) Considered opinions of dissenters, of lesser courts, of legislative bodies, of professors, and even of executives such as President Harrison could be considered as “persuasive” even though they are not judicially recognized as “precedents”.
4) Moreover, sometimes litigation (even all the way to SCOTUS) exposes stupidity or “badness” of a precedent idea so that it gets corrected — by the political branches of government if not by courts. Did you read Professor Barnett’s discussion of Illinois’s decision long ago that a woman might not practice law there because of her sex and his analysis of how SCOTUS handled her case?
5) Alexander Pope (1688-1744) wrote:
“A little learning is a dangerous thing ;
Drink deep, or taste not the Pierian spring :
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.”
One hopes that our Founding Fathers tried to follow Pope’s advice and that future decision-makers and decision-influencers will try very hard to do so.
Donna says
Wonerful; keep them coming!
David Jonas Bardin says
Here you go:
For a wealth of historic information, nicely organized, look into Steven J. Diner, “Democracy, Federalism, and the Governance of the Nation’s Capital — 1790-1974” (Center for Applied Research and Urban Policy, University of the District of Columbia 1987). This 74-page study is available at https://www.dcvote.org/sites/default/files/documents/articles/diner_democracy_and_federalism_nations_capital_0.pdf on 19 August 2018