Unfairness against D.C. citizens vs. unfairness in their favor

[John Duffy]

John Noble wrote:

> But I wonder whether Art. I, sec. 8 permits federal legislation authorizing
> DC residents to participate in the election of Maryland's delegation over
> Maryland's current objection, except pursuant to the terms of the cession,
> which seems not to have spoken to the question. Can you get there with Art.
> I, sec. 5: "Each House shall be the Judge of the Elections, Returns and
> Qualifications of its own Members ...."

Federal legislation authorizing District residents to vote for Maryland's Senators would plainly violate the 17th amendment, which requires Senators to be "elected by the people thereof [referring to "each State"]."  Authorizing District residents to vote for Maryland's congressional delegates would violate Article I, Section 2, cl. 1, which requires the members of the house to be chosen by the people of the several States.  Also, under the terms of the 14th Amendment, section 2, Maryland's delegation in the House could not be increased to take into account the residents in the District.  (At most, Article I, section 5 might make the issue subject to the exclusive judgment of the House and the Senate; it wouldn't change the constitutional law that those institutions must apply in reaching their judgments.)  Thus, any proposal to keep the District outside of Maryland but nonetheless allow District residents to vote for Maryland's federal representatives would require a constitutional amendment.

> Prof. Duffy suggests, "perhaps the question [of statehood] should turn
> entirely on the construction of Maryland's cession." I don't see that
> reservations in the terms of the cession or its congressional acceptance
> can over-ride or surrender the broad of grant of authority under Art. I,
> sec. 8, which would seem to extend to the grant of statehood under Article
> IV.

A number of State cessions of territory for federal enclaves under Article I, section 8, do include express reservations requiring the land to revert to the State if the territory is no longer used for the purposes for which it was ceded.  I don't think these are unconstitutional, do you?  If reservations are not inconsistent with the "broad grant of authority" over federal enclaves, then I don't see how they can be inconsistent with the "like Authority" exercised over the District enclave.


John Fitzgerald Duffy
Associate Professor of Law
William & Mary School of Law
P.O. Box 8795
Williamsburg, VA 23187-8795
phone: 757-221-3819
email: jfduffy at bigfoot.com or jfduff at wm.edu