The Download of the Week is Constitutional Expectations by Richard Primus. Here is the abstract:
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This essay uses the restaging of the Oath of Office after the public
inauguration of President Barack Obama to explain how and why it can be
constitutional for the District of Columbia to elect a voting member of
the House of Representatives.
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Constitutional expectations are intuitions about how the system is
supposed to work. They arise from a combination of experience,
socialization, and principle. Obviously, Americans do not all share a
single, precisely defined set of expectations. Indeed, conflicts among
rival sets of expectations help to account for many disagreements about
constitutional law. Over a relatively broad domain, however, informed
Americans share expectations about the rules of government. Those
expectations are often closely related to the constitutional text, but
the text does not always capture them precisely. On the contrary, our
shared expectations go well beyond the strict textual requirements of
the Constitution.
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The argument that the Act is unconstitutional has a reasonable basis.
Article I, Section 2 says that the House of Representatives “shall be
composed of Members chosen every year by the people of the several
States.”29 The District of Columbia is not a state. Accordingly, the
constitutional objection runs, admitting D.C. to the House would ignore
the written requirements of Section 2. And that cannot possibly be
acceptable.30 Yet this argument is not as tight as it seems, because
our system for electing Members of Congress already—and
uncontroversially—deviates from Section 2 on a regular basis. If we
were more aware of those deviations, the argument that Section 2
requires excluding D.C. might have less weight. But like the practice
of inserting the President’s name in the inaugural oath, our accustomed
departures from the text of Section 2 have become well integrated into
our constitutional expectations. We tend not to notice them.
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Suppose, however, that constitutional expectations were to shift on the
issue of representation for D.C., just as they earlier shifted on the
question of whether the Constitution requires the same racial equality
regime in the District that it requires everywhere else. Suppose, in
other words, that large majorities of American officials came to
believe that our basic constitutional values demand letting the
residents of Washington D.C. vote and be represented. A different set
of textual readings would then seem natural. To be sure, the new
received wisdom in American law would not necessarily be the one that I
have suggested about the meaning of “composed.” Perhaps a different
textual reconciliation would emerge. Or perhaps the prevailing
explanation would not take the form of hard textualism at all.
Constitutional lawyers might simply learn to shrug their shoulders at
the mismatch between the language of Section 2 and the fact of
representation for D.C., just as they now overlook the practice of
letting criminal defendants waive jury trial. If pushed, they might say
that mature respect for the constitutional text means reading it in a
reasonable way rather than a crabbed and literal one. But one way or
another, the text would not prohibit the practice.
