develop expertise in more specialized areas, I have serious doubts that a body as large as 40 members is necessary. This body will have to perform, simultaneously, the duties of state legislature, county legislature, and city council. The members and their staffs will therefore have to be in session for most of the year, and they will have to be compensated accordingly. I would urge that the Council consider a smaller legislature, perhaps one of about 24 members. Article IV of the Constitution provides that trial judges in the new state will have to run in retention elections every six years, and that appellate judges will have to run every ten years. This practice conforms to the procedure of many states, but much is to be said for the current system of retaining judges in the District. At present, judges are initially appointed for 15-year terms, and they are automatically reappointed if they are rated highly by a non-partisan tenure commission. The retention election system was approved by the Convention on a 15-14 vote. In view of the importance to liberty of an independent judiciary, one that need not keep an eye on the ballot box, I would suggest that further consideration of this matter might be valuable. Finally, Section 2(1) of Article VI states that all private and parochial schools "shall be required" to meet the "same" minimum standards for instructors, instruction and student achievement as are imposed by the Board of Education on the public schools. This suggests to me that if the Board of Education requires, as a minimum standard for the public schools, that teachers in those schools have degrees in education, the same degree will have to be obtained by private and parochial school teachers. Similarly, it would appear that if the Board requires completion of a particular curriculum (e.g., a foreign language) as a minimum requirement for the public schools, then private and parochial schools will also have to complete this curriculum. Under the Constitution, the State Board of Education "may establish equivalent alternatives" to its standards, but if it does not do so, or if the equivalents established for the public school system do not offer much flexibility, the Constitution appears to build excessive rigidity into the private and parochial schools, thereby defeating the whole point of alternative school systems, from which curricular and other pedagogical innovations have often sprung. Furthermore, the constitution appears to give the Board of Education a kind of conflict-of-interest; while its principal function is running the public school system, it is given wide-ranging power to regulate that system's only competitors, and under the Constitution, not even the state legislature may amend or repeal standards set by the Board. The procedure for amendment Obviously, the proposed Constitution is capable of being improved. The next question, then, is one of the procedure to be followed in making the improvements. The Constitution is a District of Columbia document, not a Congressional bill. And it is not an ordinary document; it is one that has been submitted to the people and ratified by them at the polls. It is therefore important that any improvements be made by the people of the District, rather than by the Congress. Before granting statehood, Congress probably has the power to amend the draft Constitution directly, but such action would violate the very principles of home rule that underlie the statehood movement. Furthermore, the draft Constitution itself provides how any changes are to be made at this stage. Article XVIII, Section 9 provides that amendments may be adopted by the voters of the District after affirmative recommendation by a two-thirds vote of the Council of the District of Columbia. This is the method for pre-Statehood amendment that the voters of the District have approved, and it should be honored. I see nothing wrong with studies, reports, or recommendations from this Committee, and I am certain that this Committee can play an important role in helping the District's Council to understand any Congressional concerns which might impede passage of a Statehood Admissions Act. But I do think that the Committee should look to the Council for the actual decisions regarding the amendments suggested by the task force or any other parties. Mr. FAUNTROY. Thank you so very much, Mr. Schrag. You've done as equally a thorough job as our previous witnesses, and we're grateful to you for that. You've raised some questions which, quite frankly, had not occurred to us earlier. And I am anxious just to note them with you now. You questioned the wisdom of the Congress rewriting the proposed constitution. It's my understanding that even if Congress voted to admit the District as a State that vote itself would have to be-would not result in statehood, that it would have to be ratified in a plebiscite. Mr. SCHRAG. That's not my understanding of the constitutional requirements, Mr. Chairman. I am not a constitutional expert as the previous witnesses were. But my understanding of the constitutional requirement is merely that the Congress pass a statehood admission act. If the Congress were to make changes in the constitution or were to condition admission in that act upon changes, then obviously the changes would have to be approved. But if the Congress were simply to approve the constitutional document that's already been ratified by the people of the District, I don't think it would have to. As a constitutional matter, I don't think it would have to go back to the District for further ratification. Mr. FAUNTROY. Yes. I think we're probably on the same wavelength. Although, again, my contention is that the Congress can make the proposed changes, and that statehood would not become operative until the people had accepted those changes. Mr. SCHRAG. If the Congress made the changes, I think you're right that the people would have to ratify those changes. In my testimony, I think I suggest that from a political perspective, from a perspective that honors the concept of self-determination, it would be better to have the process be, as a formal matter, have the process be initiated by the council and the people of the District rather than by a statehood admission act which included in it some changes in the constitution. Mr. FAUNTROY. Certainly. I must admit that I had considered that, too. It would, of course, lengthen the process. And I thought we would move on as we have. Let me ask you something about the constitution itself. It has 250 sections and over 15,000 words. Does the size of the document concern you at all? Mr. SCHRAG. No. It's much shorter than most State constitutions, I believe. Most of the 19th-century State constitutions are very long indeed, and they contain much that should have been put in legislation rather than in a constitution; and in 20th-century constitutions or 20th-century rewrites of constitutions have been eliminated. But I think most State constitutions are still much longer than this. Mr. FAUNTROY. Uh-huh. You suggested in your testimony that the proposed language of the statehood task force as to the right to privacy was vague and ambiguous I think you put it. Is there not some value in vagueness and ambiguity here? I think, on the other hand, for a modern 20th-century constitution the more specific language in the District of Columbia's effort, the constitution of New Columbia has something to commend it. It reflects the progressive traditions in the District, and it reflects the aspirations of the people. I understand that probably some of those provisions, such as the right of people to make their own decisions about procreation, might be sufficiently controversial in the Congress that it would be the better part of political wisdom to be more vague and to leave more of construction of those sections to the courts. And if that's necessary to achieve statehood, then I support that effort. Mr. FAUNTROY. Would you agree, however, that because we really can't anticipate all of the rights we may wish to protect in the future that we were probably right in maintaining some vagueness at this point to provide the way to respond to specific rights protections that may develop over the years to come? Mr. SCHRAG. Well, that's right. Of course, the political considerations aside, it would be possible to do both, to provide a number of protections explicitly, and then to provide general language, such as the State equivalent of an equal protection clause and a due process clause and a generalized right to privacy through which the judiciary could construe other protections from the language of the constitution. Mr. FAUNTROY. Uh-huh. Section 3 of the proposed constitution, as well as the proposed rewrite of that section by the task force, seeks to regulate both public and private activity. Do you have any problems with that? Is that a proper role for- Mr. SCHRAG. You're referring to the antidiscrimination clause? Mr. FAUNTROY. Yes. Uh-huh. Is that a proper role for a constitutional document? Mr. SCHRAG. I think that the analysis provided on that section by one of your next witnesses, Mr. Bograd, is a sound analysis. That is, there is the analysis shows that several other States-I think it cites Montana and Connecticut-do, in their constitutions, prohibit certain forms of private discrimination as well as public discrimination. And in the 20th century it seems to me that's entirely appropriate if a State wishes to do that. Mr. FAUNTROY. Uh-huh. I yield to a question from counsel. Mr. BARNES. Yes. Professor Schrag, I have just one question, going back to the process with respect to the constitution. In your testimony, you indicated that the proposed constitution makes provision for amendment at article XVIII, section 9. I wonder if that amendment process is available to us now, since the constitution is not yet law? Mr. SCHRAG. Well, I think that the-this is, in a sense, a very complex jurisprudential question. But I think it can be bypassed. Since the people of the District of Columbia have said how they want their constitution-how they want changes made in this document before it enters into force, it seems to me the best thing to do would be to honor that process. And then also go through the legal steps that have to be gone through to make the District of Columbia a State, namely, the passage of a statehood admission act. Since it's almost certain that as a political reality the Congress is going to insist on some changes in the constitution as part of admission, this document is going to have to go back to the voters anyway for a new ratification. The new ratification will ratify both the changes that were made initially by the council or made by the council and ratified by the people and any further changes required by the Congress. And, therefore, that final act of ratification by the people will wipe out or eliminate any possible jurisprudential question about the effective date of or the power of this clause before the constitution goes in to effect. Mr. FAUNTROY. Thank you. Finally, are you aware of any State that has absolutely abolished the doctrine of sovereign immunity? Mr. SCHRAG. Well, I can't tell you off the top of my head the names of States that have. But I believe-and maybe Mr. Bograd could address himself to this-I believe that there are States that have completely abolished the doctrine of immunity. And on the Federal level there's a very strong case for this, an incredibly powerful case in Professor Schuck's book. Mr. FAUNTROY. All right. Thank you so very much for your excellent testimony and contribution in the question period. Mr. SCHRAG. Thank you. Mr. FAUNTROY. I notice that Professor Saltzburg has arrived from the University of Virginia. He is not a newcomer to testimony on Capitol Hill with respect to the rights of the citizens of the District to self-determination. He was here, I recall, some years ago, testifying on the question about voting rights amendment. And we are very pleased to have you, Professor Saltzburg. We recognize that you do not have previously prepared testimony or presented testimony to us, but you may proceed in whatever manner you choose. STATEMENT OF STEPHEN A. SALTZBURG, PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA LAW SCHOOL Mr. SALTZBURG. Thank you, Mr. Chairman. I'd like to begin-actually, this will be the only prepared remarks that I will deliver-by saying something that will probably tell you a lot, that-I've already told the staff this-that I come here as a person who previously spoke on behalf of the voting rights amendment, the constitutional amendment that did pass the Congress, and that has not been ratified by a sufficient number of States to become part of the Constitution. I thought that was a good piece of legislation, not perfect, but good. And I did testify in favor of it. The statehood issue is one in which I have much more mixed feelings. I think the costs and benefits both to the District and to the people outside the District are much more debatable. And I guess I find myself much in the position of Arlen Specter, who tes |