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LOIS E. ADAMS, et al, Plaintiffs
v. Civil Action No. 98-1665-LFO
WILLIAM JEFFERSON CLINTON, et al, Defendants
____________________________________________
CLIFFORD ALEXANDER, et al, Plaintiffs
v. Civil Action No. 98-2187-LFO
WILLIAM M. DALEY, Secretary of Commerce, et al, Defendants
TWENTY CITIZENS' AMENDED SUR-REPLY
TO DEFENDANTS HOUSE OFFICERS' REPLY
PURSUING THE DEFENDANTS' MOTION TO DISMISS
On November 25, 1998, Defendants Robin H. Carle in her official capacity as the Clerk of
the House of Representatives and Wilson Livingood in his official capacity as the Sergeant
at
Arms of the House ("House Officers") filed a Reply to Plaintiffs' Opposition to
[the] Motion to
Dismiss previously filed by the House Officers ("Reply" to "Plaintiffs'
Opposition"). Although
Twenty Citizens will file a Motion for Summary Judgment within the coming weeks, the House
Officers make a completely novel argument in their Reply, to which the Plaintiffs must
respond.
In footnote 2 on page 5, the House Officers present an issue which they did not raise in
their original memorandum in support of their Motion to Dismiss. In this footnote they
assert that
the Plaintiffs lack standing because they "consent" to the injuries of which
they complain, saying,
"even if the House Officers were part of some 'chain of causation,' plaintiffs
causation arguments
would still lack merit because their lack of voting representation in Congress also stems
from their
choice of residence in the District, a wholly volitional act that breaks any chain of
causation."
As a factual matter, the Plaintiffs do not consent to the violation of their rights (to
which
point the existence of this law suit testifies). The law, moreover, is clear: no citizen
could consent
to violation of constitutional rights, even if the citizens was perverse enough to signify
"consent."
It is a basic doctrine of constitutional law that all terms and provisions of the
Constitution
apply throughout the entire United States, whether the residents formally
"consent" or not. "[A]ll
constitutional laws are binding on the people . . . whether they consent to be bound by
them or
not. Every constitutional act of Congress is passed by the will of the people of the
United
Sta[t]es, expressed through their representatives, on the subject matter of the enactment;
and
when so passed it becomes the supreme law of the land, and operated by its own force on
the
subject matter, in whatever State or territory it may happen to be. The proposition,
therefore,
that such a law cannot operate upon the subject matter of its enactment, without the
express
consent of the people . . . where it may happen to be, contains its own refutation, and
requires no
further examination." Pollard v. Hagen, 44 U.S. (3 How.) 212, 224-25 (1845)
(concerning
resistance by the citizens of the then-new state of Alabama to certain laws; emphasis
added). In
other words, no citizen or group of citizens or citizens organized under a State
government can
"consent" to anything which violates the Constitution. See New York v. United
States, 505 U.S.
144, 182 (1992) ("The constitutional authority of Congress cannot be expanded by the
'consent'
of the governmental unit whose domain is thereby narrowed, whether that unit is the
Executive
Branch or the States. State officials thus cannot consent to the enlargement of the powers
of
Congress beyond those enumerated in the Constitution."). A citizen can no more
"consent" to
injury in violation of the Constitution than a citizen could "consent" to
benefit in violation of the
Constitution. [footnote 1: While this is a perpetual legal principal, litigation to
vindicate terms of
the Constitution (rights guaranteed under the Constitution) requires a "case or
controversy,"
which requires a plaintiff with "standing." Lujan v. Defenders of Wildlife, 504
U.S. 555, 559-60
(1992); National Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir.
1996). If noone with standing brings suit, the courts cannot address any purported
violation of
the Constitution. Many wrongs exist in the world which the federal courts cannot address
because they lack jurisdiction, sometimes because no plaintiff with standing has filed
suit. But
despite the lack of jurisdiction, the principle remains in place and the violation might
continue. In
the instant case, these Twenty Citizens have sued, they have standing, so the court has
jurisdiction.]
This doctrine also is related to the doctrine of "unconstitutional conditions."
Generally,
this doctrine holds that a government's power to grant or deny a privilege or benefit does
not
license the government to impose "unconstitutional conditions" on enjoyment of
the privilege or
benefit. See Doyle v. Continental Insurance Co., 94 U.S. 535, 543 (1876) (Bradley, J.,
dissenting) (a state may have power to outlaw something completely, but it has no power to
impose unconstitutional conditions upon the acts it allows). Generally, "the doctrine
prevents the
government from asking the individual to surrender by agreement rights that the government
could not take by direct action." Richard A. Epstein, Foreward: Unconstitutional
Conditions,
State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 7 (1988). In other words,
governments cannot take or infringe fundamental constitutional rights even when
"surrender[ed]
by agreement." Id.
Pursuant to this fundamental doctrine, the citizens of the states cannot
"consent" to
maintain slavery, nor can anyone "consent" to be a slave. See amend. XIII,
1 ("[S]lavery . . .
shall [not] exist within the United States[.]" (emphasis added)). Pursuant to this
doctrine, the
citizens of a state cannot "choose" to have public schools for black children
which are "separate
but equal" to public schools for white children. Brown v. Board of Education, 347
U.S. 483
(1954).
Pursuant to this doctrine, the citizens of the District of Columbia (whether individually
or
through the "home rule government") cannot ignore rights guaranteed under the
Constitution, nor
can they violate the Constitution. See, e.g., Pernell v. Southall Realty, 416 U.S. 363,
369-70
(1974); United States v. District of Columbia, 897 F.2d 1152, 1156 (D.C. Cir. 1990) (D.C.
prisons cannot violate prisoners' constitutional rights) (accord Best v. District of
Columbia, 743
F.Supp. 44, 48 (D.D.C. 1990)); Shifrin v. Wilson, 412 F.Supp. 1282, 1291-92 (D.D.C. 1976);
Columbia Realty Venture v. District of Columbia Housing Rent Commission, 350 A.2d 120,
123-24 (D.C. 1975). The Constitution, in other words, reigns in the District of Columbia,
whether the
citizens "consent" or not. The citizens of the District of Columbia can no more
"consent" to
violation of their constitutional rights than they could "consent" to not abide
by the Constitution.
The suggestion that the black children of Kansas "consented" to "separate
but equal"
schooling because they "consented" to live in Kansas would have been no defense
in Brown v.
Board of Education, 98 F.Supp. 797 (1953), rev'd. 347 U.S. 483 (1954). The suggestion that
Richard and Mildred Loving had no grounds to challenge Virginia's miscegenation statutes
because they "consented" to live in Virginia would have been no defense in
Loving v. Virginia,
206 Va. 924, 147 S.E.2d 78 (1966), rev'd, 388 U.S. 1 (1967). The suggestion that the
Plaintiffs
"consent" to the second-class status to which Congress consigns them is no
defense here.
[footnote 2: The assertion of "consent" also puts a variety of present and
historical facts at issue,
as to which the Plaintiffs reserve the right to present evidence, if the assertion of
"consent" is
pressed by the Defendants. For instance, among the Twenty Citizens in this suit are people
born
in the District of Columbia and it certainly cannot be said that they
"consented" to their residence.
Also, some of the Twenty Citizens are African-Americans whose families or themselves
migrated
to the District both to escape racial discrimination elsewhere and to follow the promise
of
egalitarianism promised in our Nation's basic documents. The issue of race, in short, is
inextricable from the District's history, its present status, and a large proportion of
the people
who live here. See, Memorandum of Amicus Curiae American Friends Service Committee
Concerning Motions to Dismiss at 11-13; see generally Constance McLaughlin Green, The
Secret
City: A History of Race Relations in the Nation's Capital (1967); Haynes Johnson, Dusk at
the
Mountain: The Negro, the Nation and the Capital (1963); James H. Whythe, The Uncivil War;
Washington During the Reconstruction, 1865-1878 (1958); Kenesaw M. Landis, Segregation in
Washington; A Report of the National Committee on Segregation in the Nation's Capital
(1948).
See especially a letter from "A respectable citizen" published in the National
Intelligencer,
August 27 & 28, 1835, quoted in Howard Gillette Jr., Between Justice and Beauty; Race,
Planning, and the Failure of Urban Policy in Washington, D.C., 29 (1995): "We have
already
too many free negroes and mulatoes in this city, and the policy of our corporate
authorities should
lend to diminution of this insolent class, and the increase of the whites. . . . If they
wish to live
here, let them become subordinates and laborers, as nature has designed; if they aspire
higher, let
them remove to the North, and flourish under the patronage of their friends, the
abolitionists."
Plaintiffs would welcome the chance to present evidence to rebut such "consent"
theories.]
Finally, the two cases cited by the Defendants in support of their "consent"
theory are
wholly misapplied in this context. Both cases arise from governmental regulation of
economic
conduct. In Petro-Chem Processing, Inc. v. E.P.A., 866 F.2d 433 (D.C. Cir. 1989), the
plaintiff
found to lack standing because of "consent" had asserted loss of possible income
and other
economic losses resulting from "lax regulation" of the plaintiff's industry. 866
F.2d at 438. In
McKinney v. U.S. Dept. of Treasury, 799 F.2d 1544 (Fed. Cir. 1986), the plaintiff found to
lack
standing because of "consent" had asserted prospective injury in threats of
adverse judgments for
failure to act on contracts which the plaintiff refused to act on for moral reasons, and
the
government had not passed regulations which would have required the plaintiff to not act
on the
contracts. 799 F.2d at 1555-56. In neither case was the government required by the
Constitution
to take or not take any action at issue in the case; in neither case were any
constitutional rights
violated by the government's action or inaction. In both cases, the challenged
governmental
action was wholly discretionary agency regulation of industry and the alleged injuries
were wholly
economic or, at most, "moral." In short, both cases are irrelevant to the
questions presented in
Twenty Citizens.
Respectfully submitted,
George S. LaRoche
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