Statutory Provision for House Seat for DC -- The RemainingElectionlaw List Posts

[Scarberry, Mark]

I'm not sure how Professor Clark's argument deals with the language of
the 14th Amendment. 
 
In any event, as I understand it, residents of the District continued to
vote as if they were residents of Virginia or Maryland until the seat of
government was moved to DC in 1800. Note that Art. I, sec. 8, cl. 17
gives Congress power to legislate with respect to a district that "may,
by Cession of particular States, and the Acceptance of Congress, become
the Seat of the Government of the United States." It is reasonable to
think the the District was not fully divorced from Maryland and Virginia
until it had been accepted by Congress in the way specified in the
Constitution, that is, by the movement of the seat of government to the
District. (Of course the portion received from Virginia was ceded back
to Virginia, in 1846 I think.) 
 
Note also that the proposed bill does not allow District residents to
vote as residents of Maryland; thus the proposed seat would not be
apportioned among the states as the Constitution requires (both in
Article I and in the 14th Amendment). The members of Congress for whom
District residents voted up until 1800 were members for the States of
Virginia and Maryland, as Professor Clark notes, not for the District.
 
I do not believe it is reasonable to construe the phrase "apportioned
among the several States" in section 2 of the 14th Amendment to mean
"apportioned among the several States and the District." At the time the
14th Amendment was ratified in 1868, residents of the District had never
voted for a member of the House from the District, and they had not
voted even for a member of the House from Maryland for almost 70 years.
It had been established law for 63 years that the District was not a
"State" as that term is used in the Constitution. See Chief Justice
Marshall's opinion in Hepburn, 6 U.S. (2 Cranch) 445 (1805). The Chief
Justice's opinion shows that as of 1805 he, at least, did not expect
that the District would receive representation in the House. If the
phrase "apportioned among the several States" means "apportioned among
the several States and the District", then the District would be
entitled now, and would have been entitled as of 1868, to representation
in the House. That, of course, has not been our understanding of the
Constitution for the past 139 years. Where, then, would Congress receive
power to apportion House seats in a manner different from that required
by the 14th Amendment? That is the question as to which I have yet to
see a plausible answer.
 
Finally, as I noted in my original electionlaw list posts, Art. I, sec.
2, cl. 2 requires that a member of the House "be, when elected, an
Inhabitant of the State in which he shall be chosen." This language
implicitly requires that members of Congress be chosen in states, which
would not include the District, and it explicitly requires a member to
be an inhabitant of a "State." Residents of DC do not qualify. 
 
As I stated earlier, I would support a constitutional amendment that
would give DC a representative. It might also be that all or some part
of the District could be ceded back to Maryland. But a statute that
purports to give DC representation in the House is, in my view, clearly
contrary to the Constitution.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 


________________________________

From: Hunter Clark [mailto:hunter.clark at DRAKE.EDU] 
Sent: Wednesday, March 28, 2007 2:32 PM
To: Scarberry, Mark; conlawprof at lists.ucla.edu
Subject: Re: Statutory Provision for House Seat for DC -- The
RemainingElectionlaw List Posts


As a member of a discrete and insular ilk--meaning as someone who was
born and raised in Washington, D.C. proper--and because I served as
general counsel to the District's chief financial officer Natwar Gandhi,
I have followed with great interest the current debate over D.C. voting
rights.
 
Professor Scarberry stated in his response to Lorelie Masters that he
"still [has] not seen a plausible argument for ignoring the 14th
Amendment's provision that House members are to be apportioned among the
states, which would not include the District."  I wonder whether
Professor Scarberry would find historical precedent persuasive evidence
of the Founders' original intent.  For the first ten or 12 years under
the U.S. Constitution, D.C. residents were accorded the right to vote in
both state and national elections.  Those who resided in the part of
D.C. ceded by Virginia voted in Virginia's congressional elections;
those who resided in the area ceded by Maryland voted for congressmen
and senators from that state.  There seemed to be little question in the
minds of the first congresses, many of whose members had a hand in
drafting and ratifying the Constitution, that congress had the power to
extend the franchise to D.C. residents by statute if it so desired.
 
As D.C. began to establish its economic viability, and the population of
the city began to grow, including its substantial free Negro population,
the franchise was revoked--by statute--at the beginning of the 19th
century (@1800-1801).  But this revocation was collateral fallout from
the ongoing power struggle between Federalists and Republicans; it was
not so much a matter of definitive Constitutional interpretation.  For
at the time, underlying the debate over how the city should be governed
was the assumption that the right to vote in congressional elections
would be restored to D.C.'s citizens once the city's population grew
large enough to justify the apportionment of a congressional
representative.
 
Anyway, that's the way I learned it.  Excellent sources for this
interpretation can be found in Pulitzer Prize-winner Constance
McLaughlin Green's Washington: A History of the Capital, 1800-1950
(Princeton 1962), pp.1-26.

Professor Hunter R. Clark
Drake University Law School
2507 University Avenue
Cartwright Hall
Des Moines, IA 50311-4505
Direct Dial: 515-271-2063
Fax: 515-271-2530
E-mail: hunter.clark at drake.edu

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