Representation for District of Columbia

[Barksdale, Yvette]

Mark Scarberry writes: 

 

"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."

 

Doesn't this fact cut as well in the opposite direction?  The District
of Columbia was originally part of the original states which formed the
union. Thus, the federal government's land grab deprived the DC
residents of representation (and of voting rights - for
representatives), that they otherwise would have had.  This makes them
different from other acquired territories that were never states, and
could never be states, until they were admitted to the union. Because
the federal government's action was taken solely for its own selfish
purposes (to take the federal seat of government out of the control of
states, question - should the Constitution necessarily be construed to
also give the federal government, by that token, the power to deprive
the citizens of D. C. of representation that they otherwise would have
had. Wouldn't you want clear evidence of this intent, to make such a
judgment - particularly when the citizens of DC would have part of the
people who themselves ratified the constitution. Would they have agreed
to deprive themselves of representation in the federal government? 

 

Moreover, even if that was the intent of the adopters - question whether
the framers would have had the authority to deprive the citizens of the
original states of their membership in the union which they formed?

 

Military bases  are inapposite because the people who reside on the
military bases are citizens of other states, aren't they, and thus have
voting rights in those states. Thus they are not deprived of their
representation in Congress - (although they may be deprived of their
right of self-governance.) 

 

Given this, at a minimum, it would seem that Constitution at a minimum,
would permit Congress to legislatively to return to the  citizens of DC
representation that they otherwise would have had, but for the selfish
act of the federal government in taking over their territory.

 

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: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scarberry, Mark
Sent: Thursday, March 29, 2007 3:05 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Representation for District of Columbia

 

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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