Representation for District of Columbia - sorry final point

Tue Apr 3 20:10:51 PDT 2007

Do not think it was an oversight;  it was intentional; to keep a
permanent "political class" from having political voting power and
because everyone at the convention assumed that the residents of DC
would be tansients who would return to their states.  

We should also remember that there was no racial intention here, since
no one imagined a national capital with a free black majority. Or that
free blacks woud necessarily vote, even though they could vote in 6
states at the time.

Paul FInkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "Barksdale, Yvette" <7barksda at jmls.edu> 04/03/07 10:46 PM >>>
Sorry one more point - final one - really 

As to why the  Article I  text does not expressly include District of
Columbia,  isn't it likely that this was just an oversight? . The
district clause was probably tacked on to handle the cession of DC, and
people didn't think through the implications for other parts of the
Constitution. 

So, once the issue came up - whether DC residents could vote in federal
elections , Congress decided yes they could, which  certainly would be
reflective of what the original understanding of the provision would
have been. 

yb

***/////////////////////////////////////////***

Professor Yvette M. Barksdale

The John Marshall Law School

315 S. Plymouth Ct. 

Chicago, IL 60604

(312) 427-2737 (phone)

(312) 427-9974 (fax)

***/////////////////////////////////////////***

-----Original Message-----
From: Barksdale, Yvette 
Sent: Tuesday, April 03, 2007 9:34 PM
To: Barksdale, Yvette; 'Earl Maltz'; 'Scarberry, Mark';
'conlawprof at lists.ucla.edu'
Subject: RE: Representation for District of Columbia - one other quick
point 

Yet again have to resend because of length.  Sorry 

yb

***/////////////////////////////////////////***

-----Original Message-----
From: Barksdale, Yvette 
Sent: Tuesday, April 03, 2007 9:29 PM
To: Barksdale, Yvette; 'Earl Maltz'; 'Scarberry, Mark';
'conlawprof at lists.ucla.edu'
Subject: RE: Representation for District of Columbia - one other quick
point 

Hi all: 

Also, it turns out also that DC folks did vote in federal elections in
the early years of the United States - which is consistent with their
having retained their membership in American political community (see
this link
http://www.theweekincongress.com/Member/MAR07_FULL/HR1433DChMAR23.htm )

For example, for a significant period of time, DC residents were subject
to Virginia or Maryland law depending upon which part of the District
they resided in. (The domicile of DC residents also turns out to have a
been in an issue in a lot of slave manumission cases  decided by
Marshall. These cases were brought under Virginia and Maryland statutes
limiting the importation of slaves into the state  and manumitting
slaves of owners who did not comply with these requirements.  Marshall
got the cases under federal jurisdiction because they involved the
District of  Columbia, but Virginia and Maryland law applied depending
upon which part of DC  the slaves (or maybe slaveowners) were resident.
) 

And, during this early period of the United States,  periods in early
United States DC residents, pursuant to federal statutes,  in fact voted
in  Congressional elections in Virginia and Maryland. This is clearly
consistent  with the position that the DC residents did NOT surrender
their membership in American political community, simply by  helping the
federal government form its capital.  Instead, the early historical
practice demonstrated that DC residents retained their membership in
American political community,  notwithstanding their cession from
states. The only difference was that the federal government,  which was
in control of the DC district's territory,  had the authority to
determine the voting rights of residents of DC, rather than the states
that they had ceded from. )

Thus, for purpose of  the Constitution's textual provisions giving
States authority  over  Congressional elections- the federal government
appears to have exercised the powers  that otherwise would have been
exercised by a state.  Thus, the constitutional term "State"  in these
election provisions actually  meant "State or District of Columbia." :-)

yb

***/////////////////////////////////////////***

Professor Yvette M. Barksdale

The John Marshall Law School

315 S. Plymouth Ct. 

Chicago, IL 60604

(312) 427-2737 (phone)

(312) 427-9974 (fax)

***/////////////////////////////////////////***

-----Original Message-----
From: Barksdale, Yvette 
Sent: Tuesday, April 03, 2007 8:04 PM
To: 'Earl Maltz'; 'Scarberry, Mark'; 'conlawprof at lists.ucla.edu'
Subject: FW: Representation for District of Columbia

Hi 

I have to send this again - like many of my messages,  it  turned  out
to be too big to be sent, with the previous messages attached. 

***/////////////////////////////////////////***

-----Original Message-----
From: Barksdale, Yvette 
Sent: Tuesday, April 03, 2007 8:01 PM
To: 'Earl Maltz'; Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: RE: Representation for District of Columbia

Hi 

Sorry for the delay in responding to this - I have been away from most
email for the last several days - so I've just read your message. I am
not trying to revive the thread, but there do seem to be differences in
the creation of the Northwest and Southwest territories than in the
creation of the District of Columbia. 

According to my quick internet search on their creation -
http://www.answers.com/topic/northwest-territory;
http://www.answers.com/Southwest%20Territory%20
<http://www.answers.com/Southwest%20Territory> 

(correct me if these facts are wrong) - there are significant
distinctions between the cession the Northwest territories Southwest
territories and the cession of DC. 

1st   Neither of the territories appear to have been politically
organized as part of the a State, even before states ceded their claims
regarding these territories to the federal government. The Northwest
territory was ceded to the United States by Britain, and was the subject
of competing claims by many states. But it does not appear as if the
residents of these territories (whomever they might be) were considered
be voting citizens who were part of the political community of any
state. Please correct me if I am wrong about this. 

Similarly with respect to North Carolina, although North Carolina's
original claim to the territory was clear, they never actually organized
these areas into the voting, political community of their state. Rather,
these areas were unorganized territories claimed by the State. 

So, you don't have the situation in which the cession of claims to the
federal government would have deprived voting citizens of their ability
to vote in state government.  Instead, the analogy here, seems to be
more of a purchase of outstanding claims to largely unsettled, mostly
vacant land.  

So, perhaps the proper characterization of these territories is as
property of States - rather than the political community of States.   

DC is different, because it is clear that the territory ceded was in
fact part of the political community of the States of Virginia and
Maryland, and thus part of the political community of the original 13
states which formed the federal government. 

Thus, unlike the cession of the other territories, only the DC cession
raised the issue of whether the cession of the territory would deprive
members of the political community of the two of the original 13 states
of what otherwise would have been their automatic membership in the
national political community.

Given this, shouldn't the default position be to assume that anyone who
was a member of American Political community under the Articles of
Confederation (original 13 colonies), continued  to be so, absent some
clear indication to the contrary in the cession documents, etc. , which
appears not to be the case, because the question is still being debated
today.

yb