Representation for District of Columbia

Fri Mar 30 11:15:03 PDT 2007

The power  over DC is linked in the Constitution with the power over
military installations.  That is, after providing for power "to exercise
exclusive legislation in all cases" over the District, the same sentence of
the Constittuion gives Congress the power "to exercise like authority over
all places purchased by the consent of the legislature of the state in
which the same shall be, for the erection of forts, magazines, arsenals,
dock-yards and other needful buildings."

If Congression has the power under this clause of the Constitution to give
DC a representative in the House, why wouldn't Congress have "like
authority" to provide each military base with its own representative in the
House?

Edward A. Hartnett
Richard J. Hughes Professor
     for Constitutional and Public Law and Service
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102-5210
973-642-8842
hartneed at shu.edu
SSRN author page: http://ssrn.com/author=253335

             "Scarberry, Mark"                                             
             <Mark.Scarberry at p                                             
             epperdine.edu>                                             To 
             Sent by:                  <conlawprof at lists.ucla.edu>         
             conlawprof-bounce                                          cc 
             s at lists.ucla.edu                                              
                                                                   Subject 
                                       RE: Representation for District of  
             03/30/2007 01:18          Columbia                            
             PM                                                            

Of course I agree with Professor Maltz.

The provisions of Article I make it clear, I think, that  only states can
have representatives in the House. Nevertheless, because the  District did
not exist when the Constitution was drafted and ratified, some  argue, as
does Professor Clark, that the Founders were not thinking about the
District when they limited representation to the states. I don't understand
how  that can be when the document itself explicitly contemplates formation
of the  District by cession of land from states; in any event that is the
argument.

But that's why I asked whether there is a plausible  argument for reading
section 2 of the 14th Amendment as allowing apportionment  of a House seat
to the District. The District certainly existed when the 14th  Amendment
was proposed and ratified, and for 63 years, as I said, it  had been
established that the term "State" in the Constitution did not include  the
District. How can it be argued that the drafters or ratifiers of the 14th
Amendment were somehow not aware of the existence of the District when
they provided for apportionment of House seats  to "States"? Chief  Justice
Marshall, in 1805 in Hepburn, had noted that it would likely be more
consistent with the principles of our government to give representation in
the  House to DC; but of course he pointed out that DC was not given
representation  in the House under Article I. Are we to assume that Hepburn
had been forgotten  by 1868?

With respect to Professor Clark's other argument:  A general power to
legislate for the future District in all cases (rather  than just the power
to legislate using the limited powers otherwise listed  in Article I) would
hardly have been seen at the Founding as giving Congress the  power to
ignore other provisions of Article I, including the basis for
apportioning House seats. Could Congress have provided for representation
for the Indian tribes, or for territories? Nor should the provision now be
seen as giving Congress the power to ignore Article I and the 14th
Amendment. Could Congress now provide for representation for the National
Education Association, or for a member for the Navy? If the power is so
plenary,  could Congress have provided for a representative from DC to be
elected for four  year terms? After all, Art. I, sec. 2, cl. 1 only says
that House members chosen  by "the people of the several States" are to be
chosen every two years.

The argument simply proves too much to be  plausible. And of course the
composition of the two houses of the Congress  was a bitter point of
contention in the Convention resolved, of course, by  compromise; can it
really be that the power to legislate for the District allows  Congress to
change that composition and provide House seats  for entities other than
states? No.

As I said in my earlier message, I've brought his topic  over from the
electionlaw list. Members there are interested to see what members  here
make of these issues. Thus I really hope more conlawprof members will
comment. Of course, I won't forward any of your messages to the electionlaw
list  without permission.

Mark

Mark S. Scarberry
Pepperdine University School of  Law

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Hunter  Clark
Sent: Thursday, March 29, 2007 10:26 AM
To: Earl  Maltz; conlawprof at lists.ucla.edu
Subject: Re: Representation for  District of Columbia

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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