United States Attorney General Eric Holder didn't like the opinion of his own Office of Legal Council earlier this year. The offending opinion said that legislation now before Congress which would authorize a voting representative for the District of Columbia, a federal enclave and not a state, is unconstitutional.
Supporters of Holder say that the OLC opinion came from hold-over conservatives in that office. Not true. The offending opinion can be traced back to the days of Attorney General Robert Kennedy. Moreover, the opinion was signed by a Holder appointee described by the Washington Post as "a liberal Harvard law professor." Holder asked another of his appointees, an assistant Attorney General, for a second opinion - but not just any opinion. He asked for an opinion specifying that the legislation is constitutionally defensible.
While Holder is trying to work his way around our Constitution, the person now representing the District in Congress in a nonvoting seat has her own view of constitutional restraint on government action. This representative, Eleanor Holmes Norton, is quoted as saying, "I don't think members (of Congress) are in the least bit affected in their votes on the question of its constitutionality. People vote their politics in the House and in the Senate."
Our own Senator Orrin Hatch seems to be among those who place the legislative power of Congress over the authority of the people's Constitution. In May 2007, Hatch was quoted as saying, "The question is whether the fact that the District is not a state trumps Congress' legislative authority.
Congressional action and judicial precedent throughout American history suggest that the answer is no." Again, not true. If the expressed words and intent of the Constitution do not "trump" conflicting Congressional action then we have no Constitution at all and Congress may act as tyrannically as the popular body politic will tolerate. And as to the Senator's second point, in 1805, the U.S. Supreme Court said, " The result of (examining constitutional text and intent) is a conviction that the members of the American confederacy only are the states contemplated in the constitution." In "Kent's Commentaries" (Lecture XVII, 1826) it was said that, "neither the District Of Columbia, nor a territory, is a state, within the meaning of the Constitution, or entitled to claim the privileges secured to the members of the Union."
On the question of a voting representative in Congress for the federal District of Columbia, Mr. Hatch would rewrite our Constitution and now he is in good company with Mr. Holder, Ms. Norton, and all the rest of the current crop of "progressives."