The problem of Congressional representation for the District of Columbia, V

The Senate has, inexplicably, passed one of the most flagrantly unconstitutional pieces of legislation in American history. Ann Althouse captures it well: "I don't know how even to articulate an argument that it's constitutional to give a vote to a D.C. representative in the House." While one can conceive of an even more obviously and egregiously unconstitutional bill - an attempt to abolish the Presidency, for example, or to grant titles of nobility - no serious example springs to mind.

The bill provides that "the District of Columbia shall be considered a Congressional district for purposes of representation in the House of Representatives," but "shall not be considered a State for purposes of representation in the United States Senate." This duality would be bizarre enough by itself, but it becomes all the more so when one considers what the Constitution - the views of which should have controlled the outcome, given that Senators have an oath (routinely broken) to support and defend it - has to say about the matter. Article I provides that "[t]he House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature"; that "[t]he Senate of the United States shall be composed of two Senators from each state"; and that no person may be a Representative or Senator for a state "who shall not, when elected, be an inhabitant of that state in which he shall be chosen." Section 2 of the Fourteenth Amendment also reiterates the principle that states send representatives to Congress. The District of Columbia, of course, is not a state; that was precisely the point of creating it.1 Nor does it have a state legislature or anything functionally equivalent to which, whose electors could be the required reference point.

I have written about this issue before, but looking back at that essay, I see a lot of problems with the writing (if not the basic points), so I will post anew, drawing on earlier work. I want to focus on two contentions made by proponents of giving D.C. a vote in Congress in this post: the theory that the enclave clause grants Congress the power to give the district a vote, and the claim that the founders did not foresee the disenfrachisement of district residents. Neither holds water.

It was absolutely clear in the founding generation, and until at least 1961, that citizens living in the federal District would lack Congressional representation.

Discussion of the enclave clause in the ratification debates was limited (there was more concern about juries sitting in diversity cases in the District than for voters there). Thomas Tredwell, however, told the New York ratification convention that, in his view, "[t]he plan of the federal city ... departs from every principle of freedom, as far as the distance of the two polar stars from each other; for, subjecting the inhabitants of that district to the exclusive legislation of Congress, in whose appointment they have no share or vote, is laying a foundation on which may be erected as complete a tyranny as can be found in the Eastern world."2 That problem produced an ongoing debate about retroceding unnecessary parts of the district - particularly Alexandria and Georgetown, the existing population centers - to their donor states that began almost as soon as the government moved into the federal city. Retrocession bills were debated, for example, in 1801 and 1803; as Rep. John Smilie put it in 1801, "the people of the District would be reduced to the state of subjects and deprived of their political rights,"3 and as Rep. John Bacon put it in 1803, in the District, "the citizens would be governed by laws, in the making of which they have no voice - by laws not made with their own consent, but by the United States for them."4 Smilie responded to Bacon: "citizens here [in the District] are deprived of all political rights, [and] nor can we confer them."5

The same understanding remained intact mid-century; in 1846, Rep. Robert Hunter led the charge to retrocede Alexandria, premised on the theory that the more land taken in by the federal district, the more people were disenfrachised and deprived of Congressional representation. He appealed to "the obvious propriety of depriving no more of our people of political rights and privileges than may be indispensable for the purposes of safety and security in the seat of government."6 This argument rests, of course, on the assumption that Congress could not grant representation to the district. Tellingly, even their opponents, such as Rep. John Dennis in 1801, premised their response on the assumption that Smilie, Hunter, et al. were right; the issue met was what (if anything) was imported, and what (if anything) to do about it. This suggests strongly that the consensus in the founding era and early republic was that the federal district was incapable of representation in Congress.

That the same understanding persisted more than a century later is evidenced by the passage of the 23rd Amendment. Article II provides that "[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress," but since the District is not a state, it was unable to participate in the Presidential election. In 1961, an amendment was adopted that gave the district "A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a state" (emphasis added); the obvious implication of this text and its adoption is the premise that the district is not a state and so is not otherwise entitled to electors. As the House report accompanying the proposed amendment put it, "the Constitution has restricted [electing Presidents and members of Congress] ... to citizens who reside in States ... [and there is a] resultant constitutional anomaly of imposing all the obligations of citizenship without the most fundamental of its priveleges."7 Exceptio probat regulam in casibus non exceptis.

Defenders of giving D.C. Congressional vote(s) like to point to the enclave clause, which authorizes Congress "[t]o exercise exclusive legislation in all cases whatsoever, over" the federal District. This empowers Congress to pass a bill such as the instant one, they claim, but the argument is facile. One answer, to return to the founding for a moment, came a day after Tredwell expressed the concerns quoted above in Poughkeepsie. 420 miles away, Edward Pendleton declared to Virginia's ratification convention that the enclave clause "does not give Congress power to impede the operation of any part of the Constitution, or to make any regulation that may affect the interests of the citizens of the Union at large."8

A better answer is that the argument rests on a truncated quotation, and the bloom comes swiftly off the rose once the text is placed back in context. The enclave clause actually authorizes Congress to "exercise exclusive legislation in all cases whatsoever, over [the District of Columbia] ... and 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, dockyards, and other needful buildings" (emphasis added). The authority thus granted to Congress over the federal district is coextensive with the authority thus granted to Congress over federal dockards and so forth. Now: does the enclave clause empower Congress to award Congressional representation to federal "forts, magazines, arsenals, dockyards, and other needful buildings" over which it exercises like authority to that exercised by it over the District? That is the necessary (and absurd) consequence of the closest thing to a tenable argument that Congress can pass this bill.

What is more, since Congress has plenary authority over the district, we might ask: what other mischief can it do? If the theory is that Congress can violate the structural Constitution pursuant to the enclave clause's grant of power, why can it not also violate rights-bearing provisions? Does the enclave clause empower Congress to pass a law making the homes of district residents subject to random warrantless searches of their homes, for example, in spite of the Fourth Amendment? Why not? Representative William Payne made just this point in arguing against the afore-mentioned Hunter bill (to retrocede Alexandria) in 1846: Congress is not "omnipotent within the District of Columbia," able to perform "any act within th[e] district if deems proper, independently of the limitations of the Constitution."9 Payne drew a critical distinction: The enclave clause gives Congress 'exclusive' power of legislation, but not unlimited power [of legislation]."10 While "no other legislation [but Congress'] can be admitted within [the District]," Congress must still confine its legislation within the limitations of the Constitution; it may not "abolish the right of habeas corpus, of trial by jury, or do any of those acts prohibited by the Constitution."11 Rather, the Supreme Court said in dicta, a half-century later, Congress "may exercise within the District all legislative powers that the legislature of a state might exercise within the state ... so long as it does not contravene any provision of the constitution of the United States."12 Even when operating in its back yard, "[t]he United States is entirely a creature of the Constitution ... [and] can only act in accordance with all the limitations imposed by the Constitution."13 That power does not run to a tacit amendment of the structure of Congress in a transparent search of more votes for the majority party.

Two years on, Andrew Hyman still has the most concise and sharp summation of the issue: "If Washington D.C. is a "state" for purposes of this clause, then Congress never had any choice in the matter of representation, and so legislation on the subject is superfluous. If, however, Washington D.C. is not a "state" for purposes of this clause, then plainly Washington D.C. need not have representation according to its numbers." I disagree only in that I would say can not, not need not.

To the extent that there is a serious Constitutional question about D.C.'s representation, it is less likely to be "why can't Eleanor Holmes-Norton vote" than "why is Eleanor Holmes-Norton allowed in the House at all?" It is one thing to turn a blind eye to a traditionally-accepted gloss on the original understanding (giving federally-managed territories non-voting delegates to Congress has been accepted since the Northwest Ordinance); quite another to ignore so flagrant a violation as that proposed. The bill contains an expedited judicial review clause comparable to the line item veto (Congress lost) and BCRA (Congress lost in part and will lose in whole in due course), which - assuming an appropriate plaintiff - will be the sort of case that evokes a line Justice Scalia has used variations on (Morrison v. Olson springs to mind): if to describe this case is not to decide it, words no longer have any meaning.

Post facto:
D.C. and Puerto Rico in the U.S. House (11/27/2010)

1. 1. Compare The Federalist, No. 43 (Madison) ("complete authority at the seat of government ... is a power exercised by every legislature of the Union.... Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence ... [and] abridge its necessary independence") with Antifederalist Nos. 41-3 (Richard Henry Lee) ("the government of the union shall have secluded places, cities, and castles of defense, which no state laws whatever shall invade"). "What would be the consequence if the seat of the government of the United States, with all the archives of America, was in the power of any one particular state? Would not this be most unsafe and humiliating? Do we not all remember that, in the year 1783, a band of soldiers went and insulted Congress? The sovereignty of the United States was treated with indignity. They applied for protection to the state they resided in, but could obtain none. It is to be hoped such a disgraceful scene will never happen again; but that, for the future, the national government will be able to protect itself." 4 Elliot's Debates 219-20 (statement of James Iredell to the North Carolina ratification convention, July 30, 1788).
2. 2. 2 Elliot's Debates 402 (June 17, 1788).
3. 3. 10 Annals of Congress 991 (1801).
4. 4. 12 op. cit. 488 (1803); see id. at 486-91, 493-507.
5. 5. Id. at 487.
6. 6. Cong. Globe App., 29th Cong. 1st sess. 894-8 (1846); see Cong. Globe, 29th Cong. 1st sess. 778 (1846).
7. 7. H.R. Rep. No. 1698, 86th Congress, 2d Session 1, 2 (1960) (emphasis added).
8. 8. 3 Elliot's Debates 439 (June 16, 1788). Thus, within two days, speakers at two ratification conventions rejected, without material contradiction, the enclave clause theory advanced by vote proponents and the theory that the founding generation didn't foresee the disenfranchisement of the residents of D.C.
9. 9. Cong. Globe, op. cit. 778.
10. 10. Ibid. (emphasis added).
11. 11. Ibid.
12. 12. Capital Traction v. Hof, 174 U.S. 1, 5 (1899) (emphasis added) (citing cases).
13. 13. Reid v. Covert, 354 U.S. 1, 5-6 (1956).