A congressional committee overwhelmingly approved a bill yesterday that would grant the District a permanent, full voting member of the House of Representatives and add another legislator from Utah.
I've written before (and see also here) that I think giving D.C. a Representative and a say in the election of two Senators from a medium-population state (for instance, Maryland) would be fair. But I just don't see how this could constitutionally be done through a statute such as this one.
Article I, section 2 of the Constitution provides that "The 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." Article I, section 8, clause 17, specifically describes the seat of government as a "District," over which Congress has the power of "exclusive Legislation" — not a State, and not a place that has a State Legislature (the D.C. City Council is definitely not a state legislature, but a creature of Congress, which is the entity that has the ultimate power of "exclusive Legislation" over the District).
I believe that in some other contexts, the term "State" has been read as including D.C., Puerto Rico, and the like; I'd love to hear more about this in the comments. But it seems to me pretty clear that the text, the original meaning, and the historical understanding of article I, section 2 excludes the District, just as the Presidential election rules in article II, section 1 exclude the District (it took the Twenty-Third Amendment to change that). Am I missing something here?
Thanks to reader Jeff Hart for the pointer.
UPDATE: I've now read the Viet Dinh / Adam Charnes submission and the Ken Starr testimony, both available here (thanks to commenter Nels Nelson for the pointer); they argue that Congress's power of exclusive Legislation includes the power to treat the District as a State for purposes of article I, section 2, and point to situations (which I alluded to above) where the Court has already treated the District as a State.
Read them yourselves, but while I think they're very well argued, I'm unpersuaded. How far one should extend departures from constitutional or statutory text is always a complicated questions. My sense, though, is that relatively minor departures (relating to matters such as diversity jurisdiction of the federal courts dealing with suits between state citizens and D.C. residents) have little bearing on structural questions like this one, which have to do with who gets to participate in exercising the nation's legislative power.
That's why Section 1983, which creates a cause of action for civil rights and civil liberties violations by local governments, had to be specifically amended to cover Washington, D.C. Because the Supreme Court unanimously held it was not a state for purposes of coverage by federal statutes.
I don't know if these people who claimed this were accurate or not. Would be interesting if that happened.
Says the "Dog"
Washington, D.C. already is heavily overrepresented in the Electoral College, which selects the president, since it has three-fifths of a percent of the electoral college (3 votes out of 538) even though it has only one-fifth of a percent of the nation's population (500,000 out of more than 280 million).
Not giving it Congressional representation, other than a delegate in the House (who can vote in committee but not on the floor) helps to offset that.
Moreover, D.C. does not take full responsibility for many government functions assumed by most states, such as corrections (which was taken over by the federal government), or police (half the police in Washington, D.C. are paid by the federal government, not D.C., including the park police, supreme court police, etc.).
No representation without responsibility.
Washington, D.C. has fewer people than other nearby cities, like Baltimore, which do not have a congressman all to themselves, much less two senators all to themselves.
Washington, D.C. gets to tax non-residents who work in it through sales and business taxes, without providing much services in return (they don't receive medicaid, public education, etc., from it, and those are the D.C. government's chief expenses).
And yet, it gets a federal subsidy every year to defray part of the costs of Washington, D.C. government.
Many of those objections about representation in Congress and the Electoral College, as well as the comparison to cities, applies even more to Wyoming. Shall we kick Wyoming out and replace it with Washington, D.C.?
That would be one way to get rid of Dick Cheney, I suppose.
That way the District's residents secure representation in both Houses of Congress and, perhaps, gain their own House seat. And those nasty old, explicit Constitutional prohibitions against statehood can be overcome.
Just as a state Legislature gerrymanders legislative districts by following the center island of an Interstate highway so too, if necessary, may diverse federal properties be linked together by following the center double yellow line on roads within the District, or the overhead power lines strung from utility pole to utility pole. And, to be flexible, legislate it so that the size of the District can fluctuate as the needs of the Federal Government change - it can grow when Government expands, and shrink when Government gets smaller. Er, well in theory anyway.
I actually think it does.
In your earlier post on the subject, you suggested that DC statehood would further dilute the representation of the big states. In a sense that's true, of course. But in another, I think more compelling, sense it's precisely backwards.
I'm a New Yorker. I'd like to see New York have greater representation in the Senate. But barring that, I'd like to see more representation for folks who share my interests, and DC statehood would be a step in that direction.
The problem, as I see it, isn't only that large-state voters are underrepresented in the Senate --- it's that urban voters are underrepresented, voters of color are underrepresented, liberal voters are underrepresented, and so on. The composition of the Senate distorts our national political life, and DC statehood would serve as a counterweight to that distortion.
As for Hans Bader's comment, I don't think being given 3 out of 538 electoral votes constitutes enough overrepresentation to compensate for the massive underrepresentation of having no voting members of either house of congress. That's why I think adding a voting representative would bring things into proper balance.
The land in question was returned to Virginia's sovereignty. The piece left is formerly part of Maryland.
Why, though, should D.C. residents have to join Maryland against their will rather than get their own representatives?
Should West Virginians have to vote only for Virginia Congressmen and forfeit their own just because they were once part of Virginia?
I agree, but I think you revserved your argument.
half the district was returned already to Virginia (becoming Arlington County), based on the fact that the Federal government could never get big enough to use all that space.
The solution is to return the current DC land to Maryland, whence it came.
Keep it simple
As for the "over-representation" of Wyoming and the "under-representation" of California, blame Ben Franklin. I believe it was his idea. Perhaps not perfect, but it is, at least, equally unfair.
Democracy is a system of government, not the arbiter of all things fair and true.
I think this is a great idea. It was the way that Italy solved the problem of The Vatican City, and it would fix all the issues with statehood. When the Constitution was written, it was assumed that the District of Columbia would have few if any permanent residents. Restricting DC to cover only the White House, Congress, Supreme Court and other Federal buildings would return things to the way they were originally intenderd
DC would not be joining Maryland, it would be being returned to Maryland. DC was never an independent state, it is a federal district formed from land donated by Virginia and Maryland. A significant amount of the Virginia donation has already been returned to Virginia.
Come, you think too small. In this age of wireless Internet, rovers on Mars, and GPS phones with downloadable pixellated porn, who's to say the District must remain in a fixed shape and size? That's so twentieth century. Let us instead simply define the Federal District as the union of the 535 patches of earth at every instant under the feet of every Senator and Congressman.
Recognizing that we may have to allow slightly larger patches for certain members, e.g. the senior senator from Massachusetts, we could formally define the shape and size of each component patch of the District by having Congress assemble on the Capitol lawn on the first sunny Tuesday in March following the solstice, at which time the Chief Justice of the United States (or his designated grandchild, in case of arthritis) would bend down and draw a chalk circle around each legislator, circumscribing his or her shadow, and thus legally defining the area and shape of his or her contribution to the Federal District.
Think of the advantages!
The District automatically achieves fair representation, inasmuch as each Congressman or Senator would, by Constitutional authority, appropriate statute, Western tradition and plain common sense exercise sole and complete governance over the patch on which he stood. (Excepting control over its airspace, which he would be expected to cede to the military and/or FAA for the common welfare.)
Examining the quality of life in DC, crime statistics, litter, et cetera, it's hard to conclude Congress is very good at running the plebeian affairs of a small city, presumably because they are absorbed by their Olympian deliberations upon important issues such as....uh....well, important issues, let us just say. However, governing the affairs of the population of the patch of earth on which he stands is probably within the capabilities of even a Congressman distracted by thoughts of indictment, assuming he keeps in mind the wisdom first quoted by Madison in Federalist Number Something Or Other: "Socks first, then shoes."
There are, one would think, few to no crime issues, since the population of the patch could not boast simultaneously of a victim and a perpetrator, interesting efforts to prove the contrary by the Kennedy family notwithstanding. There would be no zoning or construction permit issues, since few private investors would try to build permanent structures in the space, provided that flashing warning lights were placed on any Senators whom age or whiskey have made to resemble too closely fossils or decorative statuary. Taking a census is a snap, transportation issues are nil (because wherever the population might want to go within the patch, it's already there). Sanitation would be one chore still remaining, but fortuantely Representatives must be at least 25, Senators still older, and most people achieve the necessary, ah, control by age 3 or 4.
Crabbed skeptics may cavil that it would be harder to make deliveries to locations within the District. How would one address a letter to one's Representative, not knowing the exact latitude and longitude of his District office? One might solve the problem by shooting RFID chips into their buttocks (the Congressman and Senators, I mean, not the constituents). With the assistance of a dense nation-wide network of radio receivers, the location of each patch of the Federal District could then easily be found, instantly, at any time, and displayed via Google Earth for the convenience of visiting constituents, mailmen, pizza delivery boys, process servers, and escorts.
My personal view is that I have no problem with DC getting a House member. But I think it has to be done through constitutional amendment. As a policy matter, I would favor an amendment that gave DC a House member as long as its population exceeded that of the smallest state (which it currently does), and if its population fell below that of the smallest state, that its citizens be aggregated with the citizens of another state (probably Maryland) so that the "Maryland" districts include the DC residents.
But although the constitutional arguments for giving D.C. representation under the theory that it is a "state" are laughably weak, they nonetheless pose dangers, because the D.C. Circuit sometimes relies on made-up doctrines (such as the doctrine of remedial discretion) to avoid invalidating legislative practices even if they are clearly unconstitutional.
When the Democratic house leadership proposed in the early 1990s to treat the D.C. delegate as virtually equivalent to a House Representative, it was far from clear that the courts would take meaningful action to stop that, although it was a clear end-run around the Constitution.
I’ve always thought (even before I was a Virginian) that this is a good question, not the rhetorical slam dunk that Angus seems to suppose. Article IV, Section 3 of the Constitution states that:
It was always Lincoln’s theory, and remained the Republicans’ theory, that the erstwhile Confederate states had never left the Union (despite the logical awkwardness of their requiring those “states” to approve the 14th Amendment in order to qualify for readmission).
No one whose definition of democracy and fairness is grounded in the fairness of representation (and isn’t that the basis for arguing for D.C. representation?) can argue with a straight face that the legislature of Virginia approved the secession of some of its northwestern counties. In the statewide vote on the ordinance of secession, “only 20,373 Virginians voted to stay with the Union, while 125,950 cast votes to join the Confederacy.” When West Virginia statehood was debated, Sen. Powell of Kentucky noted:
Perhaps the last word should be given to the radical Republican leader, Thaddeus Stevens:
[Above quotes found in this interesting scholarly article from West Virginia History.]
The point being that if people accept West Virginia as a state and give them 2 Senators and representation in the House despite it not really being a state, why deny the same to Washington, D.C.?
Yeah. And, on the same logic, why deny the same to NYCity, Baltimore, Atlanta, St. Louis, San Francisco, LA, and Seattle.
1. Does Congress' power of legislation include the power to appoint the D.C. representative for life rather than bienniel election?
2. If this can be done for D.C., it be done for other federal territories, e.g. a military base populated largely by defense contractors for whom a member has done a lot of favors?
2. If Congress can legislate up a single D.C. member, can it legislate up 10? 100? 1000?
Put these two together, and it seems to me that any claim that Congress has a power to add members not included in the Constitution's specifications for where members are to come from becomes, by methods such as creating special districts, essentially a power to control its membership, bypass republicanism, and create a self-perpetuating body. We'll go back to the bad old days of the pre-reform English Parliament and its "pocket-boroughs."
Better to have DC representation the legitimate way, through a constitutional amendment, than through a Congressional fiat that could lead to dictatorship.
Politics trumps principle. (As it does often for both political parties)
Brillant political analysis.
Perhaps you've missed the outpouring of hostility towards New Orleans since Katrina. Even while people were drowning, you had the Speaker of the House saying that New Orleans should be bulldozed, and another GOP Representative saying that God had finally cleaned up the city where men had failed.
You can try and deny it, but the Republican party has been courting the racist vote since the 1960s. Probably it is a sizeable minority of the party's support, but regardless, it is now a significant part of their base.
Do you honestly think Republicans would be so up in arms about illegal immigration if it involved 12 million blonde Scandinavians rather than 12 million brown Mexicans?
If that's not proof enough, the 23d Amendment also declares that presidential electors from the District "shall be in addition to those appointed by the States.. ."
A legitimate statutory solution to the unfair representation of D.C. in Congress would be for Congress to simply transfer some parts of Washington D.C. to Virginia and/or Maryland.
Actually Speaker Hastert said that when rebuilding New Orleans we should think about whether it might make sense to think about which parts should be rebuilt and which parts should be turned into buffers and flood zones (e.g. “bulldozer fodder’). As far as the unnamed “GOP Representative” saying God cleaned up New Orleans, Ray Nagin isn’t a GOP Representative, he’s the Mayor of New Orleans.
I’d ask you to provide some factual evidence for this smear but seeing as how you’ve already demonstrated your lack of honesty when it comes to facts, I shan’t bother.
DC can have my representative, Shiela Jackson Lee, if they want here. They'd probably stick with Marion Barry though, that way he can claim to be on the way to a vote the next time they bust him with cocaine.
Who is lying now, Thorley? The GOP Congressman is Richard Baker, who during the storm said: "We finally cleaned up public housing in New Orleans. We couldn't do it, but God did."
As for the Republican strategy in the South beginning in the 1960s, read some history. Look for Richard Nixon's "Southern Strategy." Also look and see how many segregationists switched to the GOP during the 1960s and 1970s. Finally, look up Willie Horton.
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