Representation for District of Columbia
Earl Maltz
emaltz at camden.rutgers.edu
Sat Mar 31 10:42:19 PDT 2007
There was no "land grab." The land was ceded to the federal government by
the governments of the states of Virginia and Maryland. Once again, the
cession of the land in the Old Northwest and the Old Southwest (although it
was done under the Articles) was precisely analogous.
At 05:34 PM 3/30/2007 -0500, Barksdale, Yvette wrote:
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>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.
>
>
>
>Doesnt 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 governments 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 governments 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. Wouldnt 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, arent 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 whatsoeverover 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
> whatsoeverover 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 Framersinaction 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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