Representation for District of Columbia

[Hunter Clark]

With all due respect, I disagree with Professor Maltz.  Please do not 
mistake me: I am as much of a textualist as anyone when it comes to 
interpreting the Constitution, even if that proves nothing more than 
that even the devil can quote Scalia.

At the same time, I believe the original intent of the Framers should 
be accorded more than perfunctory regard.  And sometimes, in order to 
discern that intent, it is necessary to put things in their proper 
historical context.

True, the Constitution assigns to congress the power "[t]o exercise 
exclusive Legislation in all Cases whatsoever" over D.C.  This was 
done, however, because of what had happened in Philadelphia during 
the Articles of Confederation.  Congress, meeting in Philadelphia, 
was set upon by angry Revolutionary War veterans demanding their 
overdue pensions.  The Philadelphia police and other state 
authorities sided with the protestors.  The members of the 
continental congress were lucky to escape without being tarred and 
feathered, or worse.  The Founders wanted to ensure nothing of the 
sort ever happened again, so they decided to put the future, 
permanent seat of the national government directly under congressional control.

This is the historical backdrop, and it is what makes the District in 
its origin and status different from any other territory.

 From a textualist perspective, I would argue that the assignment to 
Congress of power "[t]o exercise exclusive Legislation in all Cases 
whatsoever" over the District is about as broad a grant of authority 
as the Founders could have put into words.  The phrase is truly Writ 
Large; it contains no words of limitation.  It is absolute.  It 
follows, then, that congress could legislate the District into a 
corporate entity, as it has; or institute a territorial form of 
government, as in the past it has; or even grant the District 
statehood.  All of this being so, I see no reason why congress could 
not make a simple statutory grant of voting representation in the House.

Of course, Professors Scarberry and Maltz are right that the 
constitution says what it says about apportioning representatives 
among the "States."  It leaves out "or the District."  But the 
Framers did not have the District in mind when they wrote those 
provisions.  I would argue that inferences should not be drawn from 
what is left out of the text, or, put another way, from the Framers' 
inaction in this instance, especially given the historical 
context.  I would argue, again, that the historical context warrants 
deference.  Extending the franchise to D.C. residents in no way 
undermines the overarching concern the Founders had about the 
security of the national leadership, or the ultimate authority of 
congress over the District, even if it would give D.C. residents a 
voice in the exercise of that ultimate authority.
As for having to admit that it was wrong to deny D.C. residents the 
franchise before now, oh well, it happens.  See, e.g., the 15th 
amendment, Baker v. Carr, or the 1965 Voting Rights Act.

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


At 06:54 AM 3/29/2007, Earl Maltz wrote:
>It seems to me that those who believe that Congress can provide 
>representation for the District of Columbia by statute are focusing 
>on the wrong question.  The issue is not whether citizens in the 
>District should be entitled to vote; rather, the question is whether 
>Congress can provide representation for the District as a corporate 
>entity.  On this point, the Constitution is quite specific; it 
>provides that "Representatives...shall be apportioned among the 
>several States."  Unless the District has been unconstitutionally 
>denied its representation for all these years, or it is NOT one of 
>the "several States."  I think the choice between these alternatives 
>is pretty clear.
>
>In historical terms, the analogy is to the territory ceded to the 
>United States in the old Northwest and old Southwest.  No one would 
>have argued that the  residents of those states could have been 
>provided representation in the House of Representatives prior to 
>admission to statehood.  The residents of the District are in 
>precisely the same position.
>
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