New Article on DC House Voting Rights Bill now up on SSRN, forthcoming 60 Alabama L. Rev., Issue 5
Mark.Scarberry at pepperdine.edu
Wed Feb 18 01:45:22 PST 2009
Shameless self-promotion alert:
I've just posted a new article on SSRN that will be published in the Alabama Law Review:
Historical Considerations and Congressional Representation for the District of Columbia: Constitutionality of the D.C. House Voting Rights Bill in Light of Section Two of the Fourteenth Amendment and the History of the Creation of the District
Comments and suggestions for improvement would be very welcome. The law review editors are working away at it, and I will have some chance still to do some editing, too.
You can download the draft article at http://ssrn.com/abstract=1345744 if you're interested. You may be aware that the Senate is moving very quickly on this bill, and that there seem to be enough votes in the Senate to overcome a filibuster (which stopped the bill in the last Congress). I think members of Congress have a duty to vote against the bill (due to the oath they've taken to support the Constitution), and the President will have a duty to veto it (for the same reason) if it gets to his desk (even though he supported it when he was in the Senate).
The article takes an in-depth look at the history of the formation of the District and at the relationship between the District and Section Two of the Fourteenth Amendment. The only seemingly plausible argument for the constitutionality of the bill is the argument that the failure in Article I and in Section Two of the Fourteenth Amendment to provide representation for the District was inadvertent. (Thus proponents are stuck dealing with history, even if they are not generally originalists.) It turns out that the history of the formation of the District makes a claim of inadvertence very difficult to accept, and the history of the 39th Congress (which proposed the 14th Amendment and in which the first bills in both the House and Senate dealt with African American suffrage in the District for local elections) makes it impossible to believe that failure to provide representation for the District was inadvertent. That's fatal to the constitutionality of the bill, in my view.
The 14th Amendment argument has been briefly mentioned before (by Jonathan Turley) but has not previously been developed. (I was surprised to find that the District was front and center during the 39th Congress.) The history of formation of the District has been developed substantially by others in discussions of the DC House Voting Rights bill, but not at this length.
I've copied the abstract below.
Mark S. Scarberry
Pepperdine Univ. School of Law
Here is the abstract. If you want to respond on the list you might want to delete everything after my signature block so your message is not too long.
The lack of representation for the people of the District of Columbia in the House of Representatives is unjust. That injustice can and should be corrected either by a constitutional amendment or by a statute authorizing District residents, with Maryland's permission, to vote in House elections as Marylanders. Instead, Congress is poised to pass, and President Obama apparently is ready to sign, a bill that would attempt to give District representation in the House by a simple statute. That would violate the Constitution, as the historical evidence presented in this article establishes. As a result, members of Congress should vote against the bill, and the President if necessary should veto it, thus honoring the oaths to support the Constitution.
If constitutional, the proposed District of Columbia House Voting Rights Act would provide the District of Columbia with a voting member in the House of Representatives. The Act would be grounded on authority supposedly given by the District Clause (Art. I, ¿ 8, cl. 17). Yet both Section Two of Article I and Section Two of the Fourteenth Amendment provide only for House seats to be "apportioned among the several States." The most persuasive proponents of the Act's constitutionality concede that the District is not, for this purpose, a "State," thus agreeing with Chief Justice Marshall's view in Hepburn v. Ellzey (1805). But, they argue, the District Clause allows Congress to treat the District as if it were a State. Thus, they argue Congress has power to provide for apportionment of a House seat to the District. In response, Professor Jonathan Turley and others have shown that numerous provisions in the original Constitution simply are inconsistent with the notion that a voting member of the House can represent any entity other than a state; they also have argued convincingly that the District Clause cannot reasonably be interpreted to grant Congress power to give voting representation in Congress to any an entity other than a state.
There is only one plausible argument for constitutionality of the Act. At least, there is one argument that is initially plausible. The argument is that the failure of the Constitution to provide representation for the District resulted from inadvertence. Any argument in favor of the Act's constitutionality would have to rely on the absence of express words of exclusivity: the text does not say that House seats are to be apportioned only among the states (any more than it says the Supreme Court shall consist only of Justices nominated by the President and confirmed by the Senate). But given the apparent completeness of the provisions dealing with composition of the Congress-and given the extreme importance of the Great (or Connecticut) compromise that gave rise to the provisions for composition of the Congress-only inadvertence could even possibly justify treating those provisions as nonexclusive. Just perhaps, if the failure to provide representation was inadvertent, the District Clause could be stretched to cover the omitted case-to give Congress power to prevent the people of the District from being taxed without representation and governed without their consent. That would remedy an apparent and allegedly unintended inconsistency with the founding principles of our nation.
Was there inadvertence? Initially it might seem so. The drafters and ratifiers might not have given any thought to representation for the District. After all, the District did not yet exist when the Constitution was drafted and ratified. The Constitution did not explicitly require formation of a District. Perhaps, it might be thought, the District would have few people (given the agrarian leanings of leaders like George Washington, James Madison, and Thomas Jefferson), and thus perhaps there would be little need for representation. Perhaps, then, the drafters and ratifiers of the Constitution just did not think about the need of any future District for congressional representation.
Professor Turley and others have shown that it is highly unlikely that the failure of the original text of the Constitution to provide congressional representation for the District resulted from inadvertentence. This article provides further detailed historical evidence supporting that conclusion. The duration and intensity of the struggle over the location and character of the federal seat of government have been understated both by proponents and opponents of the Act; the long struggle nearly ripped the nation apart. In addition, the Virginians (Washington, Madison, and Jefferson), who argued for many years for placement of the capital on the Potomac, expected the capital to become a great commercial city, with the wealth of the west flowing through it by way of the Potomac.
The article also points out that a linchpin of a supplemental argument for the constitutionality of the Act-an argument put forward by Professor Viet Dinh-simply is not correct. The claim is that residents of the District (or of what was becoming the District) lost their Maryland and Virginia citizenship in 1790 but continued to vote in Maryland and Virginia congressional elections for a decade, under congressional authority given by the District Clause. Even if the facts were as claimed, this argument would not be precedent for granting a voting member in the House to an entity that is not a state. But it is apparent-at least it was apparent to Chief Justice Marshall in Reily v. Lamar in 1805-that residents of the area that became the District did not lose their Maryland and Virginia citizenship any earlier than December 1800, when the District became the seat of the federal government. The historical record also shows that District residents did not vote in any congressional election after the seat of government moved to the District (thus completing the process of cession); in fact they did not vote in congressional elections for the Seventh Congress (1801-1803), because Virginia and Maryland held their congressional elections in April, 1801, after the District had become the seat of government and after Congress had acted to exercise jurisdiction over the District.
The main focus of the article, however, is on the rich history of Section Two of the Fourteenth Amendment. That history leaves absolutely no possibility that the failure to include the District in the apportionment of House seats was inadvertent. Professor Turley has noted briefly that Section Two of the Fourteenth Amendment is inconsistent with the Act, but no one previously has developed the point. As it turns out, there is a great deal of evidence-beyond the obvious point that Congress was sitting in the District when it proposed the Fourteenth Amendment-that the failure to provide representation for the District cannot have been inadvertent. All of the reasons given for why it is unjust for the District not to be represented in the Congress were very prominently under consideration by the 39th Congress during its debates over proposal of the 14th Amendment. The District was front and center as well, since it was being used to some degree as a pilot program for the post-Civil War Reconstruction. Members of Congress repeatedly noted that the District was not represented in Congress. The first bills introduced in both the Senate and House in the 39th Congress were the District suffrage bills, dealing with voting rights in the District for African Americans (for local elections only). Provision of voting rights for African Americans in the District was a huge public issue and was considered a prelude to potential enfranchisement of African Americans nationally.
Meanwhile, the formerly rebellious southern states were not represented. Congress refused to seat the would-be Senators and Representatives sent to Washington by the provisional governments in the South, which had been recognized by President Andrew Johnson but which had excluded African Americans from voting. There were major debates over taxation without representation and over the idea of government by the consent of the governed. Members of Congress who argued for seating those would-be members of Congress loudly complained that the people of the formerly rebellious states were being taxed without representation and governed without their consent. In response, the District of Columbia was held out as an example of taxation without representation, which showed that it was not always necessary to provide representation to people who were being taxed. In addition, it was argued that African Americans in the South were being taxed without representation and governed without their consent, because they were not being permitted to vote. Thus the formerly rebellious states did not have governments that were republican in form. As a result they were not entitled to representation in Congress. There was much debate in Congress over the nature of a state that would be entitled under the Constitution to representation in Congress. And there were proposals (one from President Johnson) for providing the District with a nonvoting delegate to the House, which has been the practice with respect to territories from the beginning of our nation.
Further, the question of apportionment of House seats was seen as critical. The formerly enslaved African Americans still were not being permitted to vote, but with Emancipation (by way of the Emancipation Proclamation and the 13th Amendment), they now would count fully in apportionment of House seats among the states, instead of counting three-fifths, as they had counted (under Article I, section 2 of the Constitution) before being freed. The effect would be to increase the power of white voters in the South by giving them extra members in the House (and extra electoral votes for President). Their power would be increased as a result of losing the Civil War! Something had to be done, and the majority in Congress initially did not think a constitutional amendment could be adopted that would give voting rights to African Americans. Instead, Congress proposed Section Two of the Fourteenth Amendment, which was designed to encourage enfranchisement of African Americans and to reduce southern power in the House and in the Electoral College until and unless that was done.
The 14th Amendment provided in its Section Two for House seats to be apportioned only "among the several States," very obviously, to all involved, not including the District. It was quite understood that this would leave the people of the District without representation even though that would result in taxation without representation and would result to some degree in government not based on the consent of the governed. While states were considering whether to ratify the proposed 14th Amendment, Congress finally passed the District suffrage bill, extending voting rights to African Americans in the District of Columbia for local elections. President Johnson vetoed it, and, with national attention focused on the District suffrage bill, Congress quickly and emphatically voted to override the veto. Many states ratified the 14th Amendment while (and just after) this veto and override were taking place, and while the District was the center of attention.
This rich history of the interweaving of District issues with Section Two of the Fourteenth Amendment-an interweaving noted often in congressional debate at the time-makes it impossible to believe that there was any inadvertence at all involved in the omission of the District from the apportionment of House seats provided in Section Two. That is fatal to any hope of constitutionality for the proposed District of Columbia House Voting Rights Act.
That does not mean that the injustice of lack of representation of District residents in the House should be tolerated. Nearly all opposition to the Act has been based on its unconstitutionality, with general agreement that the District's lack of House representation is unjust. It would be very difficult now for members of Congress to vote against a simple constitutional amendment providing the District a voting member in the House. Such an amendment likely would be quickly passed by the House and Senate, and quickly ratified by the states. Alternatively, it may be possible, with Maryland's consent, to renegotiate the agreement by which Maryland ceded the land that now is the District; the renegotiated cession agreement could provide for District residents to vote as Marylanders in House elections (and to count for House apportionment purposes as Marylanders). There is a plausible argument that Maryland could have bargained for such political rights for the people of the District when it ceded the territory; it may be constitutional for that bargain to be made now.
Abstract and Draft of paper -- Copyright 2009 Mark S. Scarberry
Keywords: District of Columbia, DC, House Voting Rights, Fourteenth Amendment, Apportionment, Voting Rights, Constitution
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