Many readers will have hit the part about "adding as quasi-members the salaried delegates from Puerto Rico (whose delegate is technically a resident commissioner), American Samoa, the District of Columbia, Guam and the U.S. Virgin Islands," and decided that this was an article about arcane subjects of interest only to political geeks.
But the article deserves an attentive read, because in it, Prof. Moses not only addresses the unconstitutional nature of giving voting status of any kind to "delegates" to the House of Representatives, but points out the concrete ways in which they can have an effect.
The standard line has always been that these delegates are harmless nods to territories under U.S. jurisdiction, since they are not allowed to vote on bills that come before Congress. But we learn from Moses that they do get to vote in committees, where it is determined whether a bill even gets to the floor of the House.
We also learn that for a brief period of time starting in 1993 (until the newly elected Republican majority put a stop to the madness in 1995), delegates were allowed to vote on the floor when the House "was in Committee of the Whole" and "only when their votes would not determine the success or failure of any overall vote." Had this practice been allowed to stand, eventually the pressure would have been high to let them vote on close bills -- even though constitutionally they shouldn't be voting at all.
These issues should be of particular concern to Montanans, since Montana has the most diluted House vote of any district in the U.S. already. At just under a million people, Montana has the highest population of any Congressional district.
And even though Alaska's at large Representative has the largest district by area, given the huge swaths of emptiness in Alaska, Montana's representative still probably has the largest inhabited area to cover in the U.S. as well.
In light of this, Montanans should view as inane the move that "is afoot," according to Moses, to expand the House by two Representatives -- one full-voting member for D.C. and one for Utah (because that state very nearly missed getting an additional Representative after the last census.)
The political calculus is of course that one vote would be automatically Democrat and the other one probably reliably Republican. Although the latter has nowhere near the metaphysical certitude of a D.C. Democrat vote -- these Constitutional games tend to be played on terms that are to Democrat advantage.
Granted, states like Montana are over-represented in the Senate, but that was always the intent of the Founders -- to have one body that has proportional representation, and another body where representation is by region and by historical political boundaries, regardless of population.
This is why the notorious decision Reynolds v. Sims, which forced states to make their senate districts proportionally representative rather than allowing them to have senators represent regional interests equally regardless of population, was a highly political decision by the Warren Court that had little to do with the Constitution itself. (While it would still violate the general principle that the federal government is the product of the states rather than the reverse, the Court probably could have addressed disproportionate representation in the districts of a state's lower house with ample justification -- and left it at that.)
The oft-ignored voice of sanity on the Warren Court -- Justice Harlan -- in his blistering dissent on that case referred to the series of Supreme Court cases as "an experiment in venturesome constitutionalism."
He gives one of the most succinct and eloquent summaries of the danger that judicial activism (and by extention subversions of Constitutional principles by the executive and legislative branches of the federal government, as well) poses to our system of balance of powers:
The Constitution is not a panacea for every blot upon the public welfare, nor should this Court, ordained as a judicial body, be thought of as a general haven for reform movements. The Constitution is an instrument of government, fundamental to which is the premise that in a diffusion of governmental authority lies the greatest promise that this Nation will realize liberty for all its citizens. This Court, limited in function in accordance with that premise, does not serve its high purpose when it exceeds its authority, even to satisfy justified impatience with the slow workings of the political process. For when, in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court, in reality, substitutes its view of what should be so for the amending process.
This is another digression into the general topic of the politicized twisting of the Constitution in modern times, but the points are connected: whether in the judicial decision of Reynolds v. Sims or in moves to give Congressional votes to delegates not from states, what is being pursued is not the support and defense of the Constitution, but a momentary political outcome.
