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 Defeat an Unconstitutional Voting Seat for DC
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2009 Update: The House has subcommittee action scheduled in Jnauary for HR 157, the current version of the bill to award Washington, DC an unconstitutional voting seat. We urge you to let your Congressman know you want him to vote against it in subcommittee/committee and in the full House whenever it is brought up for a vote. This is an unconstitutional liberal power grab and it must be defeated.

Under President Bush, White House advisors recommended that the President veto the bill because it is unconstitutional, but we would expect Obama to sign this.

Call your Senators and Congressman at 202-224-3121 and ask them to vote NO on HR 157, the bill to award Washington D.C. an unconstitutional seat in Congress, and to "filibuster" the bill in the Senate if needed to prevent it from passing.  Please read the below report for the full details, and watch our television program on this issue.

Read the excellent series of responses to supporters of DC voting scheme by our Constitutional expert, Charles Orndorff--containing especially valuable information for debating people on the subject, calling talk shows and writing letters to the editor.

Call or E-Mail radio talk shows and alert Americans to this great threat, and ask the listeners to call their Senators.

Additional actions:

D.C. REPRESENTATION IN CONGRESS IS UNCONSTITUTIONAL

Constitutional scholar Charles Orndorff, who is the Administrative Vice Chairman of The Conservative Caucus, has submitted some brilliant, irrefutable testimony on the unconstitutionality of giving the District of Columbia representation in the U.S. House of Representatives.

CONGRESSIONAL REPRESENTATION FOR
THE DISTRICT OF COLUMBIA IS UNCONSTITUTIONAL

Testimony submitted to
the Subcommittee on the Constitution of the
U.S. House Committee on the Judiciary
by
Charles Orndorff
  Administrative Vice Chairman of The Conservative Caucus
The Conservative Caucus 450 Maple Avenue East * Vienna, Va. 22180 * 703-938-9626  

The United States Constitution is entirely plain and direct in declaring that states are the political units to be represented in the U.S. House of Representatives.

Article I, Section 2 states that "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States . . . ." It also says that "No person shall be a Representative who shall not . . . be an Inhabitant of that state in which he shall be chosen" and that "Representatives and direct Taxes shall be apportioned among the several states which may be included within this union . . . ." The same section guarantees that ". . . each State shall have at least one Representative . . ." and provides that "When vacancies happen in the representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."

Article I, Section 4 also recognizes only states when it says that "The Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature . . . ."

The Fourteenth Amendment continues in this vein, establishing that "Representatives shall be apportioned among the several States according to their respective numbers . . . ."

The District of Columbia is not a state, and cannot be granted representation as if it were a state by any authority in the Constitution. Congress recognized this in regard to the electoral college when it used a constitutional amendment (the Twenty-third) to grant the District electoral votes equal to those of the smallest state.

HR 5388 must, on constitutional grounds, be rejected. The actual merits of representation for the District may be debated if a constitutional amendment is offered, but the unconstitutionality of this bill requires a negative vote by those who have sworn "to support this Constitution" (Article VI, paragraph 3).

Rebuttal of Arguments for the Constitutionality of Representation

I. EXCLUSIVE LEGISLATION

Advocates of representation argue that Congress can find constitutional authority in Article I, Section 8, which grants Congress the power "To exercise exclusive Legislation in all Cases whatsoever, over such District . . . ." This has been cited by Kenneth Starr(1) and by Viet Dinh and Adam Charnes,(2) and is interpreted by them as allowing Congress to enact any legislation regarding the District, "subject, of course, to the negative prohibitions of the Constitution".(3)

The plain language of the Constitution, granting representation to states and not to any other political unit, constitutes the very prohibition which blocks any attempt to use Section 8 as a justification for representation. An understanding of the origins of Section 8 also shows that the intent behind it can in no way be understood as granting such extraordinarily broad authority.

The creation of the District of Columbia was largely the result of the failure of the government of Pennsylvania to respond to repeated Congressional requests to call out the militia when armed Continental soldiers, demanding back pay, surrounded the building in which both Congress and the Pennsylvania Executive Council were meeting on June 21, 1783. According to James Madison, the soldiers were "drawn up in the street before the State House . . . uttering offensive words and wantonly pointing their muskets to the Windows of the Hall of Congress." It was reported that the soldiers were discussing "the seizure of the Members of Congress with whom they imagined an indemnity for their offense might be stipulated."(4) When the Pennsylvania Council failed to call out the militia to restore order, Congress left Philadelphia and took up residence in Princeton.(5)

The incident forced Congress to consider the best means by which to protect the integrity of its deliberations, instead of being dependent on another governmental body for their own safety. As the Virginia Delegates put it in their report to Governor Benjamin Harrison, ". . . what pernicious instruments Congress might have been made in the hands of a Lawless band of Armed Desperado’s, and what fatal consequences might have ensued to the Union in General, had they [Congress] remained impotent and Passive Spectators of the most outrageous Insult to the Government . . . ."(6) Congress established a committee to deal with the question of the proper degree of congressional jurisdiction over a future national capital.(7)

The committee rejected the idea of shared jurisdiction, recommending in September 1783 that Congress "ought to enjoy an exclusive jurisdiction over the district which may be ceded . . . ."(8) Congress agreed, voting that "the right of soil and an exclusive jurisdiction or such other as Congress may direct shall be vested in the United states;(9) . . . ." Although the Confederation Congress never followed through on the actual creation of a national capital, the lessons of 1783 were remembered in 1787, and exclusive jurisdiction granted to Congress.

Thus the clear intent of the "exclusive Legislation" clause was to grant Congress, unhindered by any other government, full control of the United States capital city. As James Madison stated in Federalist 43, it was "complete authority at the seat of government" to avoid "dependence . . . on the State comprehending the seat of government for protection . . . ." It was not a general grant of power to pass legislation of any sort relating to the District.(10) Edmund Pendleton, who chaired Virginia’s ratification convention, told the delegates that "This 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. But it gives them power over the local police of the place, so as to be secured from any interruption in their proceedings."(11)

Advocates of representation have been unable to find any statement from the founding era to support their interpretation, but they claim this silence as proof of their view.(12) A far more rational understanding would be that it was never discussed because no one at the time ever dreamed that the jurisdiction clause would be construed to overrule the plain language of Article I, Section 2 regarding the representation of states, and only states, in Congress.

However, the debates over the Constitution are not, in fact, silent on the matter. In the New York ratifying convention, Thomas Tredwell objected that under the Constitution "The plan of the federal city departs from every principle of freedom, as far as the distance of the 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 of vote . . . ."(13) Later in the convention, amendments were twice offered that would have guaranteed the District voting representation once its population was as large as the smallest state, and both were rejected.(14) Samuel Osgood, a delegate to the Massachusetts ratifying convention, told John Adams that he could accept the District provision only if amended to reflect "proper Principles", one of which was being "represented in the lower House." However, this was not included in the amendments recommended by the Massachusetts convention.(15) A Virginia Antifederalist warned that the residents of the "district cannot have the shadow of representation in the government to which they are to be subjected."(16)

In addition, there is one genuine silence which speaks strongly against the possibility of representation. In the winter of 1800-01 the House of Representatives debated legislation to assume Congressional jurisdiction over the District, and opposition arose from members whose concerns included the fact that this would end the District’s representation in Congress. As John Nicholas (Republican from Virginia) put it, the bill would bring about "the deprivation of the inhabitants of all participation either in Federal or State legislation. . . . Could any man desire to place the citizens of the District in such a state? To deprive them of the common right of participating in the passage of laws which all the citizens enjoyed?"(17) However, not one of the opponents proposed giving the District its own representative in Congress. Instead, they suggested delaying congressional jurisdiction as long as possible, waiting, in the words of Congressman Otis of Massachusetts, until such time as circumstances demonstrated that "Congress must go into the subject in detail, and make those provisions that were necessary for a great city."(18) This failure to press for representation is a strong indication that the members understood that only states may be represented, and that the cessation of state jurisdiction irrevocably ended representation. This understanding is reinforced by the statement of Rep. Dennis that "if it should be necessary, the Constitution might be so altered as to give them a delegate to the General Legislature when their numbers should become sufficient."(19)

Further confirmation of this interpretation came in 1803, when the House took up resolutions for retrocession of the District to Virginia and Maryland. Rep. Smilie of Pennsylvania declared that it was necessary to end the exclusive jurisdiction of Congress because "we cannot possess this authority without depriving the citizens of rights which were the most dear to them. . . . Under our exercise of exclusive jurisdiction the citizens here are deprived of all political rights, nor can we confer them." (Emphasis added)(20) One could not ask for a more unequivocal statement that the District established by Article I, Section 8, cannot be granted representation. Likewise, Rep. Dennis stated that "By exclusive legislation, he understood the exclusion to the States of all participation in legislation."(21) Not one member recommended granting representation as an alternative to the existing choices of retrocession and no representation.(22)

II. TREATING THE DISTRICT AS A STATE

It is also claimed as a recognized principle that Congress has unlimited power to treat the District as a state. Advocates argue that the Supreme Court’s acceptance of a congressional act allowing citizens of the District to sue in Federal courts, despite the Article III language limiting this to citizens of states, justifies an expansive view of congressional power sufficient to grant the District representation. However, the Tidewater decision is a weak reed on which to rest such an argument. The fact that only two other justices accepted the reasoning of Justice Jackson’s decision should make us cautious about taking it as the basis for further constitutional extension. Furthermore, a close look at Tidewater demonstrates that even Jackson’s reasoning does not support the conclusions being drawn by Starr, Dinh, and Charnes. Jackson was careful to say that the Court would have to read the Constitution more "strictly" if the act reached "for powers that would substantially disturb the balance between the Union and its component states . . .", which congressional representation for the District certainly would do.(23) He also rested his conclusion on the necessity of access to the Federal courts in order to carry out such Article I congressional powers as bankruptcy laws and paying the debts of the United States.(24) Never asserting unlimited congressional power relating to the District, Jackson merely saw the legislation as a way "to exercise part of the judicial functions incidental to exertion of sovereignty over the District and its citizens."(25)

We must also note that, if we accept a broader reading of Tidewater, and the "exclusive Legislation" clause itself, it proves too much. Such a reading would authorize Congress to provide voting representation to the territories and to Federal enclaves within the states. The law which granted citizens of the District access to Federal courts granted the same to citizens of territories.(26) Article IV, Section 3 declares that Congress has the power to "make all needful rules and regulations" concerning the territories, language which may be read in a fashion every bit as sweeping and open-ended as the District clause if we are to ignore intent. Also, that portion of Article I, Section 8 which grants Congress "exclusive Legislation" over the District grants "like authority" over all territory, within the states, which has been purchased by the Federal government and over which the states have ceded jurisdiction. If Congress can grant representation to the District, it can also grant representation to the National Institutes for Health, military bases, etc.

Furthermore, it must be noted that a more direct and recent judgment on this question is to be found in the 1998 decision in Adams v. Clinton. Following a 19-page discussion of the historical record on the intent of the Framers, the court rejected representation for the district with the unequivocal comment that "constitutional text, history and judicial precedent bar us from accepting plaintiff’s contention that the District of Columbia may be considered a state for purposes of congressional representation under Article I."(27)

Finally, it must be noted that HR 5388 cannot be defended on the grounds that Congress is treating the District as a state, because the bill does no such thing. The District would receive only one representative, no matter how large its population. It would not be represented by two senators. It would play no role in ratifying constitutional amendments, even though its representative would be allowed to vote on whether to send them to the states. Rather than treating the District as a state, HR 5388 treats it in a completely unique manner.

III. CONGRESSIONAL REPRESENTATION OF THE DISTRICT, 1790-1801

Congressional representation of the residents of the District in Congress during the period 1790-1801 has also been cited, but without the crucial historical context showing this to be purely a transitional matter, and not repeatable.(28) Shortly before House approval of a 1789 bill that would have established the capital near Philadelphia, Rep. James Madison pointed out that Congress was on the verge of creating a lawless territory, no longer subject to the laws of Pennsylvania and lacking any legal code from Congress. The House therefore approved Madison’s amendment that Pennsylvania’s laws should continue in operation "until Congress shall otherwise provide by law."(29)

This same necessity was recognized when Congress enacted the Potomac Residence Act in 1790, providing "that the operation of the laws of the State within such district shall not be affected by this acceptance, until the time fixed for the removal of the government thereto, and until Congress shall by law otherwise provide."(30) During this interim period, when Congress had accepted cession of the territory but not yet assumed jurisdiction, Virginia and Maryland continued to enforce within the district their own laws in their own courts, which ceased only when Congress finally assumed jurisdiction in 1801 and created courts for the District.(31) Because the ceded area was still under the jurisdiction of those states, its residents continued to vote in their congressional districts and state legislative districts.(32) There was never any separate congressional legislation to grant them representation apart from continuing state jurisdiction. As discussed above, members of Congress acknowledged that such voting rights ended along with state jurisdiction.

Endnotes

  1. Testimony of the Hon. Kenneth Starr Before the House Government Reform Committee, June 23, 2004, pgs. 2-3.

  2. Dinh, Viet D. and Charnes, Adam H., The Authority of Congress to Enact Legislation to Provide the District of Columbia with Voting Representation in the House of Representatives, submitted to the Committee on Government Reform, U.S. House of Representatives, November, 2004, pgs. 5-6.

  3. Dinh and Charnes, pg. 5.

  4. Hutchinson, William T. and Rachel, William E., eds., The Papers of James Madison, Volume 7, 1783-1784, The University of Chicago Press, 1971, pgs. 176-78.

  5. Bowling, Kenneth R., The Creation of Washington, D.C.: The Ideas and Location of the American Capital, George Mason University Press, 1991, pgs. 33-34.

  6. Madison Papers, Vol. 7, pgs. 211-12.

  7. Madison Papers, Vol. 7, pgs. 254, 357.

  8. Madison Papers, Vol. 7, pg. 358 (note 1).

  9. Journals of the Continental Congress, 1774-1789, Vol. 25, Government Printing Office, 1922, pg. 714.

  10. Caleb Strong, in the Massachusetts ratifying convention, described the power as necessary "to prevent or punish insults." (Kaminski, John P., and Saladino, Gaspare J., eds., The Documentary History of the Ratification of the Constitution, Vol. VI, Ratification by Massachusetts, pg. 1341.)

  11. Documentary History of Ratification, Vol. X, pg. 1324.

  12. Dinh & Charnes, pgs. 6-7.

  13. Elliot, Jonathan, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, Washington, 1836, Vol. II, pg. 402.

  14. Elliot, Jonathan, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, Washington, 1836, Vol. II, pg. 411, and Syrett, Harold C., ed., The Papers of Alexander Hamilton, Vol. V, Columbia University Press, 1962, pgs. 167-70, 189-90.

  15. Documentary History of Ratification, Vol. V, pg. 621 and Vol. VI, pgs. 1469-70.

  16. Documentary History of Ratification, Vol. IX, pg. 782.

  17. Annals of the Congress of the United States, Sixth Congress, Gales and Seaton, 1851, 2nd Session, pg. 868-874. The statement by Rep. Nicholas is on pg. 869.

  18. Annals, Sixth Congress, 2nd Session, pg. 870.

  19. Annals, Sixth Congress, 2nd Session, pg. 998-99.

  20. Annals, Seventh Congress, pg. 487.

  21. Annals, Seventh Congress, pg. 490.

  22. The entire debate covers pages 486-506 in the Annals. When Rep. Huger suggested eventual statehood for the District, he found not one supporter (pg 488), and was rebuked by Rep. John Randolph (pg. 499).

  23. National Mutual Insurance Company V. Tidewater Transfer Co., 337 U.S. 528 (1949), pg. 4.

  24. Tidewater, pg. 8.

  25. Tidewater, pg. 7.

  26. Tidewater, pg. 3.

  27. Adams v. Clinton, et. al, pg. 19-37.

  28. Dinh and Charnes, pgs. 8-9.

  29. Documentary History of the First Federal Congress, The Johns Hopkins University press, 1992, Vol. XI, pg. 1513.

  30. DHFFC, Vol. VI, pg. 1767.

  31. The Public Statutes at Large of the United States of American from the Organization of the Government in 1789, to March 3,1845, Vol. II, Charles C. Little and James Brown, 1845, pgs. 103-08.

  32. Annals, Sixth Congress, 2nd Session, pg. 869.

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