Statutory Provision for House Seat for DC -- Initial Electionlaw List Posts

[Scarberry, Mark]

Here are the initial electionlaw list posts on this matter. 
 
Mark S. Scarberry
Pepperdine University School of Law
 
========================================

My first post:

From: Scarberry, Mark 

Sent: Wednesday, March 21, 2007 11:55 AM

To: election-law

Subject: RE: DC representation bill may pass House this week / 2
Washington Times op-eds in its favor

Perhaps someone could rehearse the arguments in favor of the
constitutionality of providing House representation for DC. As I read
Article I, sec. 2, House members are to be chosen "by the People of the
several States," and each House member must be "an inhabitant of that
State in which he shall be chosen." Section 2 of the 14th Amendment
provides that "Representatives shall be apportioned among the several
States." The contemplated District is described as being created by
"Cession of particular States," rather than as being a state (Art. I,
sec. 8, cl. 16, if I'm counting correctly). No one is arguing, as far as
I've heard, that the District is a state. 

With regard to Jon Roland's alternative idea, I question whether the
District can be considered part of Maryland for purposes of (1)
considering the people of the District to be some of the "People" of
Maryland or (2) allowing a District resident to be eligible to be a
House member from Maryland. After all, the District was created by
Maryland's "Cession" of the District.

The Federal government could cede the District back to Maryland, the
state from which it was received (as it did with the portion of the
District ceded by Virginia, right?). Perhaps that would be justified in
order to provide District residents appropriate voting rights.

Mark S. Scarberry

Pepperdine University School of Law

========================================

My second post, after being referred to the arguments at
http://www.dcvote.org/advocacy/dcvralegal.cfm
<http://www.dcvote.org/advocacy/dcvralegal.cfm> :

From: Scarberry, Mark 

Sent: Wednesday, March 21, 2007 9:03 PM

To: owner-election-law_gl at majordomo.lls.edu [incorrect address;
forwarded to electionlaw list by Rick Hasen]

Subject: RE: DC representation bill may pass House this week / 2
Washington Times op-eds in its favor

 

I've read the arguments at DC Vote and find them unpersuasive (even the
arguments made by my Dean, Ken Starr, for whom I have the greatest
respect). The power of Congress to legislate with respect to the
District does not, in my view, give Congress the power to rewrite the
provisions that I cited from Article I and from the 14th Amendment.

As far as I could tell, none of the arguments deal at all with the
requirement from the 14th Amendment that representatives be apportioned
among the States. Of course, by the time the 14th Amendment was adopted,
the District had been established. The argument (weak in my view) that,
because the District did not yet exist, the drafters in Philadephia
probably did not intend to exclude representation for the future
District when they used the terms "State" and "States" in Article I, is
unavailable with regard to the 14th Amendment.

Sorry for the long post, but after reading the arguments at DC Vote I
took the time to read two Supreme Court cases on which the arguments
rely. And it does not seem to me that either of them actually provide
substantial support for those arguments. Actually I think they clinch
the case against Congress having power to provide for congressional
representation for the District (absent some form of cession of the
District back to Maryland).

The first of those cases shows that by the time the 14th Amendment was
adopted, the Supreme Court had ruled in unmistakable terms that the word
"State" as used in the Constitution did not include the District. See
Hepburn & Dundas v. Ellzey, 6 U.S. (2 Cranch) 445 (1805). It seems that
Hepburn involved interpretation of Section 11 of the Judiciary Act of
1789, which provided, in relevant part,

"That the circuit courts shall have original cognizance, concurrent with
the courts of the several States, of all suits of a civil nature at
common law or in equity, where the matter in dispute exceeds, exclusive
of costs, the sum or value of five hundred dollars, and the United
States are plaintiffs or petitioners; or an alien is a party, or the
suit is between a citizen of the State where the suit is brought and a
citizen of another State."

Writing for the Court, Chief Justice Marshall held that the term "State"
as used in the statute meant the same thing as the term "State" as used
in the Constitution. With respect to the use of the term "State" in the
Constitution, the Chief Justice wrote:

"On the part of the plaintiffs it has been urged that [the District of]
Columbia is a distinct political society; and is therefore 'a state'
according to the definitions of writers on general law.

"This is true. But as the act of congress obviously uses the word
'state' in reference to that term as used in the constitution, it
becomes necessary to inquire whether Columbia is a state in the sense of
that instrument. The result of that examination is a conviction that the
members of the American confederacy only are the states contemplated in
the constitution.

"The house of representatives is to be composed of members chosen by the
people of the several states; and each state shall have at least one
representative.

"The senate of the United States shall be composed of two senators from
each state.

"Each state shall appoint, for the election of the executive, a number
of electors equal to its whole number of senators and representatives.

"These clauses show that the word state is used in the constitution as
designating a member of the union, and excludes from the term the
signification attached to it by writers on the law of nations. When the
same term which has been used plainly in this limited sense in the
articles respecting the legislative and executive departments, is also
employed in that which respects the judicial department, it must be
understood as retaining the sense originally given to it."

 

Hepburn would seem to nail down the interpretation of the term "State"
in the original Constitution. Further, in light of Hepburn, it would be
curious in the extreme for the drafters of the 14th Amendment (or the
ratifiers of it) to think that the reference in it to apportionment of
the House "among the several States" would include the District. It
would also strain credulity to think that they thought that the
apportionment "among the several States" would be nonexclusive, so that
Congress could provide for other members of the House beyond those
apportioned among the states.

As the various arguments at the DC Vote website point out, the Chief
Justice in Hepburn did go on to suggest that Congress could deal
legislatively with the matter of extending diversity jurisdiction to the
residents of the District, which it did in 1940. As the arguments point
out, the Supreme Court upheld that extension in 1949, in Nat. Mut. Ins.
Co. v. Tidewater Transfer Co., 337 U.S. 582. The case was decided by a
vote of 5-4 without a majority opinion. In fact, seven of nine Justices
agreed that the term "State" in Article III's diversity jurisdiction
provision did not include the District. 

Justice Jackson, for a three judge plurality, argued that Hepburn should
not be overruled, and that the District therefore should not be
considered to be a state. However, the grant of power to Congress to
legislate for the District gave Congress power to set up Article I
courts to deal with legal issues affecting District residents, and
Congress was permitted instead to vest that Article I power in the
Article III courts, even in Article III courts outside the District.
Thus the extension of diversity jurisdiction to cover residents of the
District did not rely (under the plurality opinion) on the view that
Congress had the power to treat the District as a state for purposes of
Article III diversity jurisdiction. Rather, the diversity jurisdiction
was Article I jurisdiction exercised by an Article III court.

An opinion by Justice Rutledge (only for himself and Justice Murphy)
rejected the notion that Article III courts could be given Article I
jurisdiction but concurred in the judgment on the very different ground
that the term "State" as used in the diversity jurisdiction provision in
Article III should be interpreted to include the District. Even in that
opinion, there is a clear suggestion that the use of the term "State" in
Article I would not include the District:

"This narrow and literal reading [by Chief Justice Marshall in Hepburn]
was grounded exclusively on three constitutional provisions: the
requirements that members of the House of Representatives be chosen by
the people of the several states; that the Senate shall be composed of
two Senators from each state; and that each state 'shall appoint, for
the election of the executive,' the specified number of electors; all,
be it noted, provisions relating to the organization and structure of
the political departments of the government, not to the civil rights of
citizens as such."

Thus Justice Rutledge distinguished the Article I uses of the term
"State" from the Article III use so as to be able to give the term in
Article III a broader meaning that would include the District. 

Justice Frankfurter dissented (joined by Justice Reed). His opinion
rejects the idea that Article III courts can be given Article I
jurisdiction and also the idea that the District is a "State":

"The Framers, in making provision in regard to 'States,' meant the
States which sent them as delegates to the Philadelphia Convention and
the States which were to be admitted later. It was not contemplated that
the district which was to become the seat of government could ever
become a State. Marshall had no mean share in securing adoption of the
Constitution and took special interest in the Judiciary Article. He
merely gave expression to the common understanding--the best test of the
meaning of words--when he rejected summarily the notion that the
Citizens of the District are included among Citizens of 'States.' "

Finally, Chief Justice Vinson (joined by Justice Douglas) also
dissented. Chief Justice Vinson's opinion agreed with those of Justices
Frankfurter and Jackson that the term "State" as used in Article III's
diversity jurisdiction provision did not include the District and also
with those of Justices Frankfurter and Rutledge that Article III courts
could not be given Article I jurisdiction.

So what are we left with? Seven justices refused to treat the District
as a state. The jurisdictional statute was upheld only because three
justices thought Congress could give Article I power to Article III
courts and two justices thought the term "State" should be interpreted
to include the District. Except in an opinion for only two justices, the
case does not seem in any way to suggest that Congress has power to
expand the meaning of the term "State" anywhere in the Constitution to
include the District. Perhaps the plurality opinion stretches the
principles of separation of powers by allowing Article III courts to
exercise Article I jurisdiction (created under the Article I power to
legislate for the District), but that is at best very remote authority
for allowing Congress to stretch the term "State," especially given that
seven of nine justices rejecting any such stretching.

Mark S. Scarberry

Pepperdine University School of Law

 

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